May, 2018

More than half of recent graduates in Scotland are working in non-graduate jobs.

Figures from the Office for National Statistics (ONS) have revealed that 56% of graduates across the country who left full-time education in the last five years were working in a non-graduate role in 2017. Non-graduate roles are those that do not require knowledge and skills developed through higher education. Examples can include receptionists, sales assistants, many types of factory workers, care workers and home carers.

While recent university leavers might not expect to go straight into a graduate role, the picture is not much better for longer-term graduates. In Scotland, 40% of all working-age graduates who left university more than five years ago are working in non-graduate jobs.

It means that in total, more than 413,500 graduates living across the country are estimated to be working in jobs that don’t require their level of education.

Across the UK, 47 per cent of recent graduates and 37 per cent of non-recent graduates were working in non-graduate jobs in 2017. It means around 4.6 million people up and down the country are over-qualified for their job.

  • Posted on May 31st, 2018

When is a resignation constructive dismissal?

Constructive dismissal is a difficult subject for employers and occurs when employees allege that their employer has breached the implied term of mutual ‘trust and confidence’ in the employment contract, either through a single serious incident or a series of smaller incidents that cumulatively amount to a fundamental breach.

In the case of a series of smaller incidents, the employee must identify the ‘last straw’ (or the final incident that forced them to resign) and must resign immediately following the last straw event.

In a recent case, an employee who resigned following her unsuccessful internal appeal against a disciplinary penalty was held to have no reasonable prospects of success in her constructive dismissal claim. The last straw she had identified was ‘innocuous’ and did not breach her contract.

She was employed as a nurse and was subject to a formal capability procedure, which she alleged was unjustified. Later, she complained of bullying by colleagues. Following an altercation with another staff member she was disciplined for ‘inappropriate behaviour’ and given a final written warning. Her appeal was rejected and she resigned the next day.

What was the last straw that triggered her resignation? The employment tribunal held that it could not be the disciplinary process or appeal, as the employer had acted fairly and properly throughout.  This means that a properly followed disciplinary process, or its outcome, cannot be a fundamental breach of contract for the purposes of a constructive dismissal claim, or contribute to a series of events that are alleged to cumulatively breach the contract.

  • Posted on May 31st, 2018

Employment Tribunal finds that the menopause was a disability in the case of a dismissed employee

The Scottish Courts and Tribunals Service (SCTS) has been ordered to reinstate a court officer who was fired after confusion over whether her cystitis medication had been drunk by two men. She will also be paid £19,000.

Included in the award was £5,000 for injury to feelings for disability discrimination, as the Tribunal in Glasgow found that her dismissal was linked to disability in a rare instance of the menopause being cited in a disability claim.  The crux of the matter is that the employee mistakenly thought she had put some of her medication in water that was drunk by a third party and on investigation, the employer found this a gross breach of health and safety and dismissed her for gross misconduct.

At tribunal, the employer eventually conceded her disability at the time of her dismissal. The tribunal found her “a wholly credible and reliable witness”.

The tribunal found that the employer had both unfairly dismissed her and discriminated against her on grounds of disability, particularly as it had failed to consider her disability’s impact on her conduct.

The conclusion was that in some cases a woman who is going through the menopause may be disabled, provided that the symptoms she suffers from have a substantial adverse effect on her ability to carry out normal day-to-day activities.

As well as the £5,000 granted for injury to feelings, the employer was ordered to pay £14,009.84 for lost pay between the date she was fired and the date she was due to be reinstated.

  • Posted on May 29th, 2018

External investigator helps in a serious disciplinary

When employment issues crop up in the workplace, it is essential to conduct fair investigations as one wrong turn, even if made innocently, can have significant consequences in terms of expense, time and exposure to potential claims.

Employers are increasingly appointing external, independent investigators to help thoroughly investigate complex and sensitive employment issues. Using an external expert can reduce the stress and potential personal strain that often arises when trying to conduct such processes internally. When carried out properly, it can also provide reassurance that the process has been handled fairly and impartially.

If possible, minor and straightforward issues should be resolved internally as this promotes good practice and confidence in the workplace. However, for more serious, technical or sensitive issues, external investigators may be used effectively.

If there is a conflict of interest, or a manager who would usually deal with the investigation is either a witness to or implicated in the matters to be investigated – or if there is no one else suitably qualified and experienced at the organisation who is available to deal with the issue fairly – an external investigator is often appointed.

External investigators will seek to remain fair and objective, obtaining all relevant evidence they consider to be necessary to conduct a reasonable investigation (whether this supports or contradicts an allegation). This will involve collating documentary evidence and taking witness statements in relation to the issues under investigation.

In the context of a disciplinary matter, it is not an investigator’s role to prove the guilt or otherwise but to investigate if there is a case to answer.

Companies should:

  • provide an adequate brief to the investigator on the issues;
  • give clear instructions about what is required;
  • make appropriate arrangements to protect confidentiality;
  • agree with the investigator what resources and access will be required;
  • ensure appropriate supplier terms of appointment are in place, which should also address legal compliance obligations (including the GDPR); and
  • check their own insurance policies and check the investigator has insurance in place.

Investigators should not influence a decision – their job is purely to conduct an impartial investigation and the terms of appointment should therefore clarify the extent of the appointment (to include what the investigator should not do). It is not the role of an independent investigator to act as decision-maker and the company may ultimately be held liable for any failure that leads to a successful claim.

  • Posted on May 29th, 2018

Effective Managers promote Health and Safety

Health and safety management, like all management functions, involves active leadership from the top. Managers, particularly at senior levels, play an integral part of organising health and safety and are responsible for delivering and implementing policies and objectives. The Health and Safety Executive (HSE) has long recognised managers as a key influence on organisational health and safety and emphasises the importance of a proactive approach by managers in establishing the safety culture within organisations.

So how can managers help to promote positive health and safety culture in their organisations?

Managers can help to promote positive approaches to health and safety by leading by example, communicating effectively and engaging with staff, encouraging a learning culture, promoting a “just, no-blame culture”, and tracking and monitoring progress to fight complacency.

Managers may have the right approach and keenness to promoting a positive health and safety culture but this cannot be achieved without effective communication and staff engagement. Employees play an important role in shaping the health and safety culture of an organisation. Managers that work with their staff, engage with them regularly, encourage an open door policy to listen to and discuss issues and provide timely feedback generate effective communication within teams.

Continuous reviewing and monitoring of health and safety performance is a positive way of gauging the health and safety culture in an organisation and a means for improving on existing processes. Managers need to ensure that reliable performance indicators are in place that reflects the hazards to which staff are exposed. They need to have a competence assurance program to ensure that staff have the right skills they need to work safely and help them identify any issues and establish actions for improvement.

Managers should note that it does takes some time to develop a good health and safety culture and it can be lost easily and in a shorter time than it took to achieve it. Health and safety cultures continually evolve and continuous effort is required to ensure that changes are positive. Managers working at improving factors will have a positive influence on their organisation’s health and safety culture.

  • Posted on May 29th, 2018

Sacked director employed his wife to save paying tax

A recent tribunal ruling has examined alleged misconduct involved a company director employing his wife to provide HR services. The company claimed (among other wrongdoing) that a Director had arranged for his wife to be paid a salary even though she was not a genuine employee of the company.

The claimant took a corresponding reduction in salary with the net effect being to reduce his liability to tax. This constituted a fraud on the revenue. He claimed that a similar arrangement was put in place by another director, as well as by the company’s Chairman, but they both insisted that their wives were genuine employees.

Giving evidence to the tribunal, the Chairman pointed out that the employee’s wife had no HR qualifications, worked entirely from home but did not have either an official email address or a company mobile telephone.

Furthermore, she had received no training and taken no holiday but for working an average 8 to 10 hours per week was being paid £36,000 per annum. It then emerged that the wife of the other director was employed as his PA but she too worked exclusively from home, had the same lack of impact on the company’s training, sickness and holiday records and also lacked a company email address and mobile for working 10 to 15 hours per week, she was paid £18,500 a year.

The employment judge noted that the three wives were the only employees on the company’s payroll who were not entitled to the bonus payable on either of two schemes. The explanation that this was because they worked from home ignored the fact that other employees doing the same still received the bonus.

The Judge decided, on the balance of probabilities that the three senior directors had all agreed to pay bogus salaries to their wives to reduce their own tax liabilities. However, this did not help the particular employee in this case, who was described as a “quite unsatisfactory witness” as he was

found to have acted dishonestly in other respects, including the submission of false and inflated expense claims.

The company was entitled to summarily dismiss him without notice, the Judge concluded. What has become of the other wives’ employment status remains unknown…!

  • Posted on May 23rd, 2018

Staff won’t discuss stress and managers aren’t trained when they do!

Less than a sixth of workers feel comfortable speaking to their manager about their stress levels, a comprehensive survey has found. The study of 4,619 people – which was conducted by YouGov on behalf of the Mental Health Foundation revealed that a quarter of millennials and almost one in five baby boomers believe they compromise their health to do their job. The research also found that 84% of managers acknowledged that employee wellbeing was their responsibility, but less than a quarter said they had received any training on the matter.

Training and guidance on engaging with employees on mental wellbeing is crucial for line managers. Organisations with managers who are able to effectively promote good mental health are less likely to have seen an increase in reported common mental health conditions.

The statistics suggest that stress is a significant issue for the British workforce. Giving employees support and a positive psychosocial work environment has a proven impact on productivity and means that employees embrace the challenges of work with more energy and commitment.

  • Posted on May 23rd, 2018

Over £55k award in discrimination case where harassment was dismissed as “banter”

A bus driver who was told to pretend she was pregnant or married to avoid harassment from her male colleagues suffered discrimination and was unfairly dismissed, an employment tribunal has ruled.  Her employer was found guilty of harassment, discrimination and constructive unfair dismissal, after a female employee lodged a grievance about multiple counts of sexual harassment from her majority-male team, only to be told by her union representative that the culprits were “probably joking”, and that she should lie about her relationship status to avoid future incidents.  This is yet another case where workplace “banter” has been used to label insidious discriminatory behaviour.

The claimant resigned from her post as her grievance was not resolved and the behaviour worsened and the tribunal upheld her claim of constructive unfair dismissal.

The employer was ordered to pay a total of £55,167.20, broken down into a financial award of multiple damages – including those for sex discrimination and unfair dismissal – of £23,612.89, and an award for injury to feelings for sex discrimination of £17,000.

  • Posted on May 18th, 2018

Interns – great source of labour – not unpaid volunteers!

The use of internships is rising rapidly and becoming a common route into work, particularly for young graduates. In April, a study was published that suggested that the number of internships has doubled since 2010. Of these, they estimate that one in five is unpaid.

Public interest in unpaid internships has been steadily building, with concerns focusing on whether  unpaid internships are legal.

Whether an unpaid internship is legal depends upon the nature, length and arrangements for each. Some businesses consider interns to be volunteers, so they are not entitled to the minimum wage. But there are a growing number of employment tribunal cases where interns have successfully argued that they should be classed as workers, not volunteers, and so are entitled to be paid the minimum wage.

The consequences of failing to pay the minimum wage to interns who are classed as workers are potentially serious. The organisation could be required to pay up to six years of backdated minimum wage to each worker, fined and publicly ‘named and shamed’ as a business that fails to pay the minimum wage.

As a general rule, if the intern has to carry out tasks personally and follow instructions (rather than just shadowing someone), they are likely to be classed as a worker. There have been calls for HMRC, which enforces minimum wage compliance, to crack down on unpaid internships as a potential source of tax revenue.

Given the legal and public relations risks, businesses that have unpaid internships should consider changing this practice. Doing so may lead to better quality candidates applying for internships and potentially becoming employees in the future.

  • Posted on May 18th, 2018

Non-compliance investigations in gender pay reporting started

The first investigations into non-compliance with the Gender Pay Gap reporting obligations could start as early as June this year, according to correspondence published by the Treasury Select Committee.

The Equalities and Human Rights Commission (EHRC) has the power to take enforcement action against any employer who does not comply with the Regulations and will publish details of all employers that reach the investigation stage.

Since 4 April, all charities and private companies with 250 or more employees have been required to publish their gender pay gap calculations. For public sector bodies, the deadline was 30 March.

  • Posted on May 15th, 2018

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