Heat of the moment resignation should have been retracted
A managing director has won a claim of unfair dismissal against a company he founded after his colleagues accepted a resignation made in anger, and terminated his employment hours after he stormed out of a meeting.
An employment tribunal (ET) heard that the director told his fellow directors “I won’t be back” as he left a meeting about employees’ pay. Despite contacting the directors the day after the disagreement to clarify he was not resigning, he was told his resignation had already been accepted, and he was not to interfere with the business of the company any more, or speak to staff.
The ET ruled this was an unfair dismissal, as the director offered “no real resignation despite what might have appeared at first sight”.
The argument erupted as the directors could not agree about whether or not to award staff a pay increase. The judge accepted that his actions on the day he walked out “amounted to an apparently unambiguous resignation”. But he also noted the circumstances in which it had happened meant the company should have given more thought before ending his employment. The tribunal said “the directors were blinkered by an overwhelming desire to ensure that the claimant would not be allowed to return to work, in any circumstances, and that no explanation whatsoever from him for his conduct, even though it was unprecedented in some thirty years, would be accepted.” The claim of unfair dismissal was therefore upheld.
Employers should always respond carefully to situations where employees resign ‘in the heat of the moment’”. Tempers can flare in the workplace, and it is advisable in these circumstances to give the employee time to calm down, contact them later, and get them to confirm in writing that they do wish to resign.
Increase in pay costs when freelancers and contractors become employees
Half of freelance and contract workers would seek a pay increase and other benefits if their hirer categorised them as falling inside IR35 legislation, a poll has shown.
A survey of contractors found 50% of those polled would ask for more money if re-categorised as falling under IR35 when the changes to off-payroll rules are rolled out to the private sector this April.
Employers cannot expect to continue business as usual without offering contractors caught within IR35 some form of compensation. Where firms find the relationship between contractors and organisations resembles employment, they should consider hiring them as employees.
Under IR35, if a contractor is deemed to carry out similar or the same work as a permanent staff member their employer is required to deduct income tax and national insurance contributions as if they were an employee. The legislation was introduced to ensure workers undertaking similar roles paid similar tax regardless of whether they are an employee or contractor.
Changes coming into force in the private sector in April shift the responsibility of assessing which contractors fall into this category on to employers. The changes have applied to public sector employers since 2017.
But a lack of Government guidance and uncertainty over the changes to the rules has made it difficult for recruiters to provide the right advice and also placed the onus on them to do so. With such a short timeframe left to address IR35, recruiters will play a pivotal role in ensuring the changes are properly enforced and will also be answerable to HMRC when the time comes.
Will Brexit make it easier for employers to bring migrants to the UK?
The UK should reduce the salary threshold for migrants looking to move to the UK after Brexit to £25,600, the Government’s migration advisers have said. The Migration Advisory Committee (MAC) recommended that the threshold be reduced from the current level of £30,000, which would make it easier for employers looking to bring in talent from outside the European Economic Area (EEA), but would still represent a major new barrier for those employing Europeans.
The report suggested that the current Tier 1 system set the bar too high and was too risk-averse, targeting only those at the very top of their field. The report noted that the number of applications for this visa fell consistently short of the cap.
Many employers will be relieved to see the lower minimum salary threshold but will also be keen to see the temporary one-year visa extended to two years when the Government makes its final policy announcement in spring, In the meantime, the important thing for employers is to get up to speed with the new system. The Government is expected to publish another immigration white paper in March.
Discriminatory comments during pregnancy announcement
A pregnant NHS administrator was discriminated against after her manager asked if her pregnancy was planned and if the cost of her maternity leave would come out of the team’s budget.
The employment tribunal ruled that these comments were “objectively inappropriate and upsetting” and “manifestly made because of the claimant’s pregnancy”. It found that the comments were made because the line manager was frustrates when told of the pregnancy in a meeting that had been called to let the employee go due a reduction in funding for the post since her recruitment, a few months before. The manager saw the pregnancy as a barrier to dismissal and spoke out of frustration.Regardless the line manager gave the employee four weeks’ notice of her termination, citing insufficient funds to retain her.
The employee brought complaints of discrimination and harassment on the grounds of pregnancy, race and religion, as well as a claim of unfair dismissal. The Judge said that the line manager’s comments – a direct reaction to the employee’s announcement of her pregnancy, were discriminatory.
However, the tribunal ruled that the employee had been fairly dismissed because the reasons for terminating her assignment were budgetary pressures. So even though the dismissal was deemed to be fair, the employer will still have to make a compensatory payment for its discriminatory remarks. A remedy hearing is still to be held.
Fair gross misconduct dismissal – internet misuse
A facilities assistant was fairly dismissed after an investigation revealed her level of non-business related internet use was “substantial”, an employment tribunal has ruled.
The tribunal found that a facilities assistant regularly abused use of her internet while at work, which included online shopping.
An investigation was undertaken of the employee’s usage over a month and showed consistently high use for non-work related searches across most working days. The tribunal was presented with 117 pages of data, which showed hundreds of entries recording access to shopping websites including Evans, Shoeaholics, Ryanair, easyJet and Debenhams.
The employee said she may have “briefly” looked at a site then left it open while working.
She was dismissed without notice for gross misconduct due to the “substantial” level of non-business related internet usage because it “showed contempt for the trust placed” in the employee.
Where employees do have access to the internet at work, employers should have a policy setting out whether they can use it for personal reasons, what sites they shouldn’t access and whether personal access should be limited to breaks. Employers should also have a policy on monitoring internet usage, which should be highlighted in the staff handbook.
This case was successful because a sound investigation was carried out and the employee was provided with an opportunity to review the evidence against her – the most fundamentally important aspect of any disciplinary.
Have your managers been trained to manage rather than bully?
Line managers are more likely to be responsible for workplace bullying than any other group in the workplace, a survey has found, leading to calls for more support and training for those with management responsibilities.
A new report from the Chartered Institute of Personnel and Development has found that two-fifths of employees who had experienced bullying and harassment at work said their line manager was responsible.
This compares to 29% who said a colleague within their team was responsible, 18% who cited colleagues elsewhere in the organisation, and just 5% who said a customer or client was responsible for bullying.
The report which surveyed more than 2,000 employers and staff about their experiences of conflict at work over the last three years, also revealed that line managers were either a source of conflict or made conflict worse.
Almost two-thirds of line managers surveyed reported not receiving any people management training. The report also found that serious issues arising from workplace conflict such as bullying and harassment were thought to be ignored by some staff. A quarter of employees surveyed said such problems were “swept under the carpet” in their organisation.
More than half of the respondents who reported having experienced bullying said they had not reported this to their employer, despite a third of workers more generally saying they felt more confident challenging sexual harassment than they did two years ago, when the #MeToo movement gained momentum on social media.
If poorly managed, or not addressed at all, conflict at work may result in the deterioration of working relationships, grievances and resignations. Employers can be liable to potentially costly tribunal claims if an employee successfully claims they have been harassed and the business did not take ‘reasonable steps’ to prevent this.
121 is running a workshop aimed at managers, to support them in managing difficult situations at work in a way that avoids any potential claim of bullying. “Behaviours at Work – Understanding the Unacceptable” is running in Dundee on 6th March and in Glasgow on 11th March. Email email@example.com for further information.
Failure to pay minimum wage – a rising problem
Employee underpayment is rising and businesses are not being sufficiently pursued, according to Living Wage campaigners, the Resolution Foundation.
It is stated that minimum wage non-compliance fell consistently between 1999 and 2015. However, since the introduction of the National Living Wage (NLW) in 2016, non-compliance has been increasing. In 2016 around one in five workers aged 25 and over earning the NLW were reportedly underpaid. In 2019 this figure rose to more than one in four workers.
However, HMRC has claimed that they are prosecuting more non-compliant companies, identifying a record 1,456 organisations between 2018 and 2019. HMRC is also issuing higher fines, charging a record £14.1 million in penalties between 2017 and 2018.
Increase in Statutory rates from April 2020
The government has published the proposed statutory rates for maternity pay, paternity pay, shared parental pay, adoption pay and sick pay from April 2020.
The current weekly rate of statutory maternity pay is £148.68, or 90% of the employee’s average weekly earnings if this figure is less than the statutory rate.
The rate of statutory maternity pay is expected to rise to £151.20 from April 2020. The increase normally occurs on the first Sunday in April, which in 2020 is 5 April.
Also on 5 April 2020, the rates of statutory paternity pay, statutory shared parental pay and statutory adoption pay is expected to go up from £148.68 to £151.20 (or 90% of the employee’s average weekly earnings if this figure is less than the statutory rate).
The rate of statutory sick pay is also proposed to increase from £94.25 to £95.85 on 6 April 2020.
To be entitled to these statutory payments, the employee’s average earnings must be equal to or more than the lower earnings limit. However, the lower earnings limit from April 2020 has not yet been published.
Employer obligations following suspension?
Suspension is where an employee continues to be employed but does not have to attend work or do any work and usually occurs when:
• a serious allegation of misconduct has arisen
• there are medical grounds to suspend
• there is a workplace risk to an employee who is a new or expectant mother
Suspension should not be used as a disciplinary sanction and should not be automatic when dealing with a potential disciplinary matter as normally an employee will be able to continue doing their normal role while the matter is investigated.
Suspension should be considered if there is a serious allegation of misconduct and:
• the working relationships have severely broken down
• there is a risk that the employee might tamper with evidence, influence witnesses and/or sway the investigation into the allegation
• there is a risk to other employees, property or customers
• the employee is the subject of criminal proceedings which may affect whether they can do their job.
In certain circumstances, a health professional may recommend that an individual worker is unfit to work with a particular hazard. If the hazard cannot be immediately removed, the employer should consider:
• temporarily adjusting working conditions
• offering suitable alternative work (at the same rate of pay and on terms no less favourable than the original role).
If it is not feasible to make such adjustments, the employer may have to suspend until it is safe to return to work.
Following notification of an employee’s pregnancy, the employer must undertake a risk assessment taking into account any advice the employee has received from their doctor or midwife. If the risk cannot be removed, the employer must:
• temporarily adjust working conditions and/or working hours, and if that is not possible
• offer suitable alternative work (at the same rate of pay and on terms no less favourable than the original role) and if that is not feasible
• suspend the employee from work on paid leave until their maternity leave begins or it is safe for them to return to work.
• If suspension is necessary, an employee should be provided with a suspension letter that includes:
• the reasons for the suspension and how long it is expected to last
• their rights and obligations during the suspension. For example, that they should be contactable during normal working hours
• a point of contact (such as a manager or HR) and their contact details for the employee during their suspension
• that the purpose of suspension is to investigate and is not an assumption of guilt (if applicable)
Employees should usually receive their full pay and benefits during a period of suspension.
Are you doing enough to support the mental health of your staff?
With approximately 1 in 4 people in the UK experiencing a mental health problem each year, according to NHS research, the issue of employee wellbeing has never been more important. A poor culture at work can have a significant effect on employees’ mental health. Conducting regular engagement surveys can be a useful tool to obtain feedback on staff experience, helping to identify factors that are likely to create stress among employees and to evaluate general engagement and satisfaction with workplace practices.
The relationship between managers and teams on the ground can have a huge impact on employee satisfaction at work and encouraging managers to adopt a positive and supportive approach not only promotes better mental health but can drive productivity by improving motivation. Employees should feel able to raise any issues and concerns with their managers without any fear of a consequence and therefore managers need to be trained to recognise the signs and to be able to deal properly with employee concerns.
Creating a workplace culture that supports all staff and making wellbeing a priority should be an important part of every business plan – and will result in a more effective and productive workforce. If you are interested in finding out more about using 121 to conduct an engagement survey, contact us at firstname.lastname@example.org