Beware employer responsibility to make reasonable adjustments
A disabled worker whose employer failed to provide voice recognition software to ease pain that “left her in tears” has been awarded an overall sum of £45,000 by the Employment Tribunal.
The employee suffered from carpal tunnel syndrome and arthritis and was forced to resign from her role because necessary adjustments were not made. The ET heard that she had repeatedly asked for a voice recognition service to be installed on her computer that would have reduced the amount of typing needed for her role. The software was eventually installed, but only after two years, during which the employee took multiple periods of sick leave because of the pain in her hands.
The Employment Judge ruled: “Given that a material and indeed very significant cause of the claimant’s resignation was her having been subjected to unlawful discrimination, not least in the prolonged failure to make reasonable adjustments, that dismissal must also be categorised as a further act of unlawful discrimination. At a return-to-work meeting following a period of protracted absence, it was clear that no steps had been taken to acquire voice recognition software and the employee began a phased return to work with regular breaks but at a grievance meeting held several months later, the employee confirmed that she felt a loss of trust in her employer due to their failure to provide the voice recognition software.
The ET ordered the employer to pay £12,421 for compensation for unfair dismissal and £14,385 loss of earnings arising out of unlawful discrimination. She was also granted £15,000 for injury to feelings arising out of unlawful discrimination, in particular the failure to make reasonable adjustments. With the addition of interest, the employee received a total award of £44,673.75.
Making reasonable adjustments is a legal duty when an employee has a disability and employers must take ownership for implementing the necessary adjustment.
20% of young workers paid less than the NMW
As many as 20% of workers aged between 18 and 30 are illegally paid less than the National Minimum Wage (NMW). A recent survey of 4000 young people has found that 20% of young women and 16% of young men claim to have been paid less than their legal entitlement.
Young Londoners were the most likely to say they had been paid less than the minimum wage at 24% and those in the East Midlands were the least likely at 12%.
There has been a call on the Government to crack down on employers who are not complying with the law and it is suggested that it should extend the National Living Wage to under-25s, who can currently be paid less for doing the same work as slightly older colleagues.
With HMRC statistics showing an increased number of investigations into NMW payments and fines levied against errant organisations, employers really need to review their pay practices to ensure they comply with the law on minimum payments to staff.
As well as deliberately paying staff below the statutory rate, employers could be breaking NMW law with dress codes that require low-paid staff to purchase specific items which, when you deduct the cost, takes their salary below the national minimum. As itemised pay statements will become mandatory for all workers in April this year, there is a further incentive to pay staff correctly as many individuals stand to gain a greater understanding of how exactly their salary is calculated.
Will you be required to report the pay gap between your CEO and your staff?
From January 1 this year, UK listed companies were required to report the pay gap between their Chief Executives and average UK employees. For every £1 the average FTSE 100 company gave to an employee in 2017, its CEO got £145.
Under new law, companies listed on the London Stock Exchange with an average of 250 or more staff must publish a comparison of their CEOs’ annual earnings, including comparing the CEO’s salary to an employee in the bottom 25% of earners in the company.
The Government has published a set of rules to calculate the pay gap and CEOs must show that they have followed these rules when they submit their first reports in early 2020. In the report, businesses must also justify the CEO’s salary and it must be consistent with the wider pay, reward and progression policies that exist in the business. It is expected that the pay gap reporting requirements will bring with them a great deal of controversy as CEO salaries start to emerge.
Landmark case at Supreme Court will pave the way for restrictive covenants
The Supreme Court has begun the process of deciding a case that could see thousands of employment contracts become null and void over their use of restrictive covenants, also known as non-compete clauses. The Court is reviewing a previous Court of Appeal judgment that a six-month non-compete clause was unenforceable because it was too broad.
In the case, the Court of Appeal has found that the clause, which prevented employees from being “concerned or interested in any business carried on in competition” after termination, was unreasonable because the time frame was too wide and it would bar former employees from being a shareholder in a competing business.
The case centred around an executive recruitment and global management consultancy which has appealed the decision to the Supreme Court, where it is now being reconsidered.
Non-compete clauses are commonplace in contracts and if this landmark case is upheld, contracts that include such a provision may have to be rewritten. It has long been known that terms which seek to restrict an ex-employee’s actions after termination of employment will only be enforceable when they are reasonable. This is usually determined by the specific facts of the case, but employers who include terms which are too wide will affect the ability to enforce them. When constructing restrictive covenants, employers should be clear on what they want to restrict and avoid general terminology. We will bring further information on this case when it is decided.
Follow internal policies when consulting for restructure
A hospital trust unfairly dismissed a senior manager when it matched her with unsuitable roles during a wide-ranging restructuring exercise, an employment tribunal has ruled. The judge stated that the trust “misled” the employee regarding a matching exercise during the restructure exercise.
During the restructure exercise the employee was offered an alternative to redundancy but at a salary of £15,000 less than she was receiving.
The tribunal ruled that the restructuring team failed to carry out an adequate “matching” exercise and did not establish from the duties and responsibilities. According to the judge the exercise was carried out “without reasonable or proper cause, in such a way as was calculated or likely to destroy or seriously damage the relationship of trust and confidence”.
Employees have the right to be consulted about the changes occurring in a restructure. Setting out to employees what the proposed changes are, why they’re occurring, being open, doing due diligence at the start and following the business’s policies. Confirmation of the removal of a job role should not be carried out until all alternatives have been examined and the consultation process has ended.
Pointless and unproductive meetings will cost £45bn in 2019
Researcher from Doddle has found that the average professional spends two hours a week in pointless meetings, or over 24bn hours of working time. Professionals were also asked to rank pointless meetings against other common occurrences by how irritating they found them:
Poor meetings affect people’s behaviour; if a meeting isn’t working they end up bringing other work and multi-tasking rather than focusing on the meeting. Consider is if the meeting really is essential, and if those invited are required to be present. Try to keep meetings as on-topic as possible to ensure no extra time is wasted.
Educate workers on the effect of alcohol consumption on productivity
Almost a quarter of 18 to 34-year-olds say they have gone to work still feeling drunk after boozy nights out over the past 12 months. According to the new research half (50%) of these workers admit to having driven to work on these occasions. The research shows that young workers are twice as likely as colleagues aged 35 and over to come into work still feeling drunk (12%).
Just one in ten workers said their employer currently provides staff with any health advice on alcohol consumption. Furthermore, almost one in five said their employer has contributed to unhealthy levels of drinking – by encouraging alcohol consumption during staff nights out, for example, paying for work drinks and by promoting a work hard, play hard culture.
The research found that more than a quarter of workers have hangovers on a monthly basis that affect their productivity. In addition, one in four 18 to 34-year-olds have taken sick days in the past 12 months because of hangovers. This compares with just 13% of those aged 35 and over.
Somewhat surprisingly, more than one third of all workers taking time off due to hangovers admitted the reason for their absence to their boss.
Health and Safety – it’s just common-sense
If health & safety truly was just common sense, and every employee had a level head, there would be no accidents. In 2018, 144 fatal injuries were reported to the HSE.
A further 71,062 non-fatal injuries to employees were reported in the same period, with a total of 0.6 million non-fatal injuries to workers.
In the same report the HSE also found that there were over 239,000 new cases of workers suffering from a case of stress, depression or anxiety in 2017/18, leading to a loss of 15.4 million working days.
Aside from the moral responsibility that every employer has to their employees, and the legal ramifications of failing to be health & safety compliant, there are also significant fines to consider.
Data from the HSE shows a total of 45 cases in 2017/18, where the fine was greater than £500,000. The largest fine made during this period was £3 million and was given after a fatal fall from height.
Flexible working requests on the rise
Increasingly, requests for flexible working are occurring in the workplace. Originally flexible working was designed as an option for parents or carers needing to adapt their working lives around their caring responsibilities. However, it has now become broader with people seeking to work according to their preferences, rather than their needs.
While there isn’t a legal definition of flexible working, the umbrella term can cover all manner of working outside the office, including from home.
In legal terms, employees have a statutory right to put in a formal flexible working request after 26 weeks’ service and can put in requests of this nature every 12 months. Bur recent research has found that 16% of employees felt that their manager would react badly to a request for a more flexible working schedule, with a further 15% concerned that it could negatively impact their career progression.
However, those who have had their flexible working requests accommodated may also that there are negative consequences. Some workers may feel isolated and struggle to make professional connections; or feel less connected to their teams.
One in 10 employees in the UK are already on some form of flexible working contract, and with this number only set to rise, employers need to be able to accommodate the increasingly flexible workforce. Employers should have policies in place to demonstrate how flexible working can be used and applied for.
Are we doing enough to support mental wellbeing in the workplace?
A city worker has died after falling from a building in Canary Wharf in a case that highlights the importance of mental health support in the workplace.
Eyewitness accounts state that the man sent a text, put down his bag, then jumped four storeys to his death in the Canary Wharf Shopping Centre in East London in January.
Research from Accenture suggests 66% of UK workers have personally experienced mental health challenges, with 61% choosing not to tell anyone about them. The main reason for this is that individuals are fearful that disclosing a mental health condition will prevent them from getting promotions and work-related opportunities. In order to make progress, communication is key. Managers need to have regular, open and honest conversations about mental health with their teams.
However, according to a recent report, 40% of employees work for an organisation that does not offer any mental health support for employees at all.
It is important that business leaders break the culture of stigma and silence around mental health and start making it a management priority and ensuring that a range of support is available for those who need it.
ACAS recommend the following for managers: