- Indirect Discrimination “Provision, Criterion or Practice”.
- Personal emails sent from business account were not private or confidential.
- Statutory code of practice on “fire and rehire”.
- Hybrid Working “Home and the Office”.
- Tips for Dealing with Alcoholism in The Workplace.
- Menopause: why are workplaces failing women?
1. Provision, Criterion or Practice
In claims for indirect discrimination should the comparison pool be matched to the relevant PCP?
Yes, held the EAT in Allen v Primark.
The Claimant worked for the Respondent as a Department Manager. Following maternity leave she aimed to return to work in November 2019. In advance, due to her childcare responsibilities, she made an application for flexible working. Her main concern being that she would be disadvantaged by the PCP that she was required, as a manager, to guarantee her availability for late shifts on a Thursday. She felt this put her, as a woman, with childcare responsibilities at a substantial disadvantage. The Respondent would not accommodate all of her requests and she resigned claiming constructive dismissal and indirect sex discrimination.
The tribunal identified the relevant comparison pool to be the department managers within the same store bar one who had his own arrangement with the Respondent. Based on the proportion of men and women in the identified pool that were disadvantaged by the requirement to work a late shift on a Thursday the tribunal found that women were not at a particular disadvantage.
The EAT held that the tribunal’s approach in determining the comparison pool was incorrect as it wrongly defined the Claimant’s discrimination complaint. The tribunal had approached the PCP on the basis of the Claimant being asked to work late on Thursday which her childcare did not permit. The Claimant’s PCP was actually that she was being required to guarantee her availability for those shifts. The EAT found that the tribunal’s failure to accurately address the PCP rendered the comparison pool unsafe. The case was remitted for re-hearing.
2. Personal emails sent from business account were not private or confidential
Brake and anor v Guy and ors, Court of Appeal
The Court of Appeal upholds the High Court’s decision that an employee who had used
a company email account for personal correspondence had no reasonable expectation of privacy, and the emails were not confidential. The account was designed to receive enquiries from customers and was not controlled by the employee. Although the employee was in possession of the password for the account, the password belonged to the company and was designed to protect its secrets, not those of the employee.
Article 8(1) of the European Convention on Human Rights provides that individuals have the right to respect for their private and family life, their homes and correspondence. Case law of the European Court of Human Rights – for instance, Halford v United Kingdom (Brief 593), Copland v United Kingdom (Brief 829), and Bărbulescu v Romania (Brief 1038) – has made clear that this right to privacy extends to the workplace. The right is not absolute. Interference with privacy can be justified under Article 8(2) if it is in accordance with the law and
is necessary in a democratic society to achieve one (or more) of the following legitimate aims: national security; public safety; prevention of disorder or crime; protection of health or morals; and protection of the rights and freedoms of others (here, the rights of employers).
The Convention is incorporated into UK law by the Human Rights Act 1998, which has influenced the courts in developing an important cause of action for protection of privacy.
The question whether there is a reasonable expectation of privacy in any particular case will turn on a careful and detailed analysis of all the facts and circumstances.
There was no merit in the argument that certain categories of emails – concerning, for example, one of the claimant’s health – were prima facie private.
This case demonstrates that employees who send emails via a shared business account are highly unlikely to have a reasonable expectation of privacy vis-à-vis their employer for the purposes of stage one of the privacy test. Conversely, the Court of Appeal considered that employees were entitled to expect that messages in their individual work email accounts would remain private.
An employer may still be entitled to access such messages, and forward them to certain third parties, but would need to establish that this was justified and proportionate, applying the balancing exercise required at stage two.
3. Statutory code of practice on ‘fire and rehire’
On 29 March, the Government announced that it will be issuing a statutory code of practice to address the use of ‘fire and rehire’ practices to bring about changes to employees’ terms and conditions.
The code will also clamp down on ‘unscrupulous’ employers who fail to engage in meaningful consultations with employees. The code will detail how businesses must hold fair, transparent and meaningful consultations on proposed changes to employment terms and will include practical steps that employers should follow. Tribunals and courts will
be required to take the code into account when considering relevant cases, including unfair dismissal. They will have the power to apply an uplift of up to 25% of an employee’s compensation where the code applies, and the employer unreasonably fails to follow it.
The Government has been under pressure to address the use of fire and rehire for some time yet has consistently resisted calls to legislate. In January 2020, it announced that it had launched an investigation with Acas into the practice.
Following publication of the Acas report on 8 June 2021, the Government asked Acas to produce guidance to help employers explore all options before considering fire and rehire, and to encourage good employment practice. On 11 November 2021, Acas published updated advice, which suggests that employers should fully consult their workforces and make every effort to reach agreement on any contract changes, noting that fire and rehire is an extreme step that can damage staff morale, trust, productivity and working relations. However, the Acas advice currently has
no statutory force. Following the recent controversy over the dismissals, without consultation, of over 800 staff at P&O Ferries, who were subsequently replaced by workers on inferior terms, the Government is now going further, by developing a code which will give some legal force to its expectations that employers should behave fairly and reasonably when seeking to change employees’ terms and conditions. Details of the code are now awaited.
4. Hybrid Working from Home and the Office.
Many businesses are now adopting hybrid working models where employees work part of the week at home and the remainder of their time in the office or another working space. Having largely disproved the suspicion that working from home results in poor productivity levels, the pandemic has given rise to flexible working which now looks to become a permanent arrangement in many organisations.
Now, with restrictions being eased yet at a time when long-term hybrid models are being implemented by many organisations, working from home could have implications in terms of employees’ home insurance.
Although the ABI has stated that office workers who are continuing to work from do not need to contact their insurers, there could be exceptions based on the following scenarios:
- An employee has visitors to their home on business matters, for example, if they have a face-to-face client meeting.
- An employee makes or sells goods from their home or if they store any of these items at a home, particularly if valuable or includes hazardous or flammable material (such as gas cylinders or fireworks).
- If an employee provides any other services from your home as part of your company’s line of business. For example, this would apply to jobs such as providing beauty treatments, hairdressing, child minding, dog grooming or being an exercise instructor.
- If an employee has adapted their property (e.g., using an outbuilding as their home office or undertaking any major renovation works).
- If an employee has acquired new business equipment that belongs to your business. Cover for any business equipment (e.g., a laptop) will usually be the employer’s responsibility.
If there is any doubt if your employer liability insurance covers homeworking or if there is anything in an employee’s lease or mortgage preventing them from working from home, it’s a sensible precaution to check with their policy or financial service provider.
Many insurers provide home business insurance package which include policies which cover each of the scenarios we have discussed in this article. As packages and policies can differ, it’s worth speaking to your own business insurance provider to check to what extent your homeworking employees are covered.
Types of business insurance policies include:
This is a type of business insurance that must be held by law if you employ others. If you have employees, you’re legally obliged to have employer’s liability insurance that covers you for damages of at least £5m. This will cover you should an employee make a claim against you and your business because they’ve been injured or have fallen ill due to their job.
If you don’t have employers’ liability in place then you could be fined up to £2,500 a day, so it’s a costly mistake to make.
There are some companies that don’t need insurance in place, including family businesses if all employees are closely related to the business owner, so make sure you check whether you need cover.
Here are the most common types of business insurance which could apply to those of your employees who work from home:
Many home insurance policies automatically cover up to £5,000 of home office equipment, but if employees use any computing or specialist equipment as part of their job, they may need more.
If people visit an employee’s home for business purposes, then you’ll need public liability. Even if they only enter an employee’s home briefly, accidents can happen. Public liability insurance covers you for compensation and legal fees if a member of the public sues you for injury or damage to their property. So, if a customer comes into an employee’s home to collect a cake, or a courier drops off some flyers, public liability protects your business if they slip, trip or fall.
Goods in transit
If an employee delivers your product to customers, or collects stock from suppliers, there’s a chance that items could get lost or damaged during the journey. Goods in transit cover limits the financial impact that such an event would place on your business.
It’s also worth checking if an employee’s car insurance is covered for business as well as domestic uses. In most cases standard domestic policies disallow business usage. If an employee uses their car for business purposes, they may have to alter their car insurance policy to cover any miles they travel on top of standard “social only” or “social and commuting” use.
If you are an employer who is already providing flexible, hybrid working arrangements or considering do so, it’s key that you know where your team members are during working hours.
Our HR management software includes a location tracking management system that enables employees to notify colleagues and their managers of their working location. Although this isn’t a legal requirement, it is good practice and lets employees know that you are looking out for them, wherever they happen to be working and that a duty of care is very much part of your company culture.
Please note that we do not endorse, or any recommend any business or home insurance provider. The opinions expressed in this article are those of the author. For advice about insurance, we recommend contacting an independent financial adviser.
5. Tips for Dealing with Alcoholism in The Workplace.
In the U.K. there is an increasing problem of alcoholism in the workplace. It can be a challenge for employers to realise that there is a problem and then recognise the specific signs which may indicate that the problem is alcohol related. There are many issues that result from alcoholism in the workplace. An employee may have problems with health and safety, produce poor quality work, have more absenteeism and poor timekeeping. Long term this can affect productivity, revenue and company reputation.
The impact of these issues can alter the work culture of the business as relationships between staff become strained due to colleagues being forced to undertake more work or redo work which has been substandard. This increases the stress felt by the workforce as well as them having concerns about their colleague. In turn, this will cause problems for employers and can affect the business and their revenue significantly.
Knowing what to do if you suspect that an employee is suffering from alcoholism is essential. These tips will help employers to recognise the signs of alcoholism and guide you through the steps to take to resolve the issue.
How to Spot Alcoholism in the Workplace
Workplaces are often stressful and pressured environments for employees. It can be hard to distinguish between an employee who is suffering from anxiety and stress or one who is suffering from alcoholism. Making that distinction is important for the right actions to be taken.
- The following are signs to consider:
Have you noticed increased absenteeism from an employee?
- Are records showing more accidents and injuries?
- Have you noticed physical signs of drinking such as a hangover, tiredness, and nausea?
- Is the employee making more mistakes and not meeting deadlines?
- Have you noticed the employee showing signs of mental health issues such as anxiety and depression?
The answer to these questions could indicate that alcoholism is behind your concerns although you should also consider other mental health or life issues. Keep a record of incidents and issues that you have noticed or that have been reported by other colleagues. This will help to provide a detailed trend of any problems.
Why Is It Important to Deal with Alcoholism?
Alcoholism can cause serious difficulties in the workplace that can have severe consequences for both the employee and the employer. The employee could have developed problems with their mental and physical health. They may also have marital, family, and personal relationship issues. It is vital that employers offer support and assistance to an employee who they feel may have alcohol issues. This can be extremely challenging and remaining calm can help the employer to prepare to support the employee.
An employee who has consumed alcohol on work premises could be in breach of their contract but terminating their employment should only be done if other measures are not possible. An employee with alcohol problems is in a weak position and it may be more beneficial to be sympathetic providing that the issue can be addressed swiftly to prevent accidents. The employer must consider the effects that this has on other employees and avoid any further reduction of productivity. Supporting an employee to fully recover may enable them to return to full health and be productive again.
Five Tips for Dealing with Alcoholism in the Workplace
1. There should always be a written policy to deal with alcoholism and abuse of alcohol in the workplace. The HR Department should advise on the legalities so that the policy offers support to affected employees as well as considering the business needs. All employees should have access to the policy and all managers should have regular training on dealing with alcoholism in the workplace. The policy should include ways to direct employees to appropriate support and treatment programmes.
2. The employer should have written records documenting incidents and issues that have triggered the concerns about alcoholism. Discussions should be sympathetic and understanding to create a positive environment. The focus should be on the issues and not judgemental. This will create an opportunity for the employee to be open and should help to avoid false accusations.
3. The employer should remain compassionate and sympathetic to the causes of alcoholism. The employee will be vulnerable and will require support to allow them to be open about their situation. This will enable the employee to engage with suggestions regarding rehab to help them on the pathway to recovery.
4. The employer must have an excellent knowledge of alcohol rehabilitation programmes. The employer can help the employee to engage in the right rehab treatment by advising where to get professional help.
5. A positive approach and sympathetic environment can make all the difference to how engaged the employee will be with the steps for recovery and increase the chances of a positive outcome.
Having followed the steps above, the employer should create an action plan to help the employee who is having problems with alcohol in the workplace. It is recommended at this stage that the employer should seek professional support for the employee.
First, the employer should consider, in discussion with the employee, the different support options which the employee can access. Their personal circumstances will dictate whether they should consider inpatient or outpatient treatment.
Inpatient treatment will require a prolonged absence for the employee which will need to be authorised. Outpatient treatment can include support groups and therapies which can fit outside of working hours. This may benefit employees who need less intensive alcohol rehab treatment and who would like to keep some of their usual routines.
We recommend that employers contact Rehab Clinics Group for more advice on the inpatient and outpatient treatment programmes that we offer. They are experts in dealing with alcohol issues. By working out a plan together it is possible to support employees who have problems with alcohol to fully recover and have the very best outcome.
6. Menopause: why are workplaces failing women?
Recent research demonstrates that as many as sixty percent of women are currently suffering or will suffer from disabling menopausal symptoms. This means workers at every level who are female or who identify as female are suffering from debilitating menopausal symptoms. Overlooking the consequences of menopause in the workplace can lead to:
- an unhappy, underperforming workforce
- high levels of sickness absence
- loss of workers at every level leading to skewed figures on wage equality and unequal representation in the boardroom
- claims in the employment tribunal on the grounds of sex, disability, or age discrimination
Menopause is a complex and, for some, an embarrassing topic and workers often suffer in silence. A menopause policy including risk assessments and workplace training is required. But no one should make assumptions about menopause and particularly on the grounds of age because menopause is not just a condition of older workers, it can affect those aged between 45 to 55 and also those five years younger as the perimenopause sets in – a time when the body begins to transition. 12 million women in the UK are perimenopausal. Workplaces must open up the conversation because workers must feel able talk to colleagues, line managers, HR and their employers, they must have confidence that effective steps will be taken to accommodate this phase in their lives.
A recent employment appeal tribunal case – Rooney v Leicester City Council – establishes a precedent for a finding of disability discrimination in this area. Ms Rooney was employed by Leicester City Council for twelve years as a childcare social worker. She resigned and claimed sex discrimination and disability discrimination because she had suffered severe menopausal symptoms – physical, mental, and psychological – over a period for two years but received no constructive help from her employer. She related embarrassing discussions with male managers and insensitive comments from her line manager such as he often felt hot in the office too, and she received a written warning for being off sick. Her symptoms included insomnia, fatigue, light headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines, hot flushes. She was under the care of her GP and a consultant at a specialist menopause clinic.
The employment tribunal dismissed the disability and sex discrimination claims and Ms Rooney appealed. The employment appeal tribunal held she was disabled. Under the Equality Act a person has a disability if they have a physical or mental impairment and this has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. “Long term” is defined as lasting for at least 12 months, or likely to last for at least 12 months, or for life.
The tribunal considered the cumulative effect of impairments. Ms Rooney reported her symptoms led to forgetting meetings and appointments, forgetting to put the handbrake on her car, leaving the house without locking the doors. Under the Equality Act Guidance, someone can suffer minor disabilities across a variety of day-to-day tasks, but taken together, the cumulative result can amount to a substantial adverse effect.
Almost one million women in the UK have left jobs as a result of menopausal symptoms – a statistic remarked on by the House of Commons Women and Equalities Committee which is currently enquiring into menopause and the workplace.