Employment tribunal warns of failure to make reasonable adjustments
An NHS receptionist who developed a phobia of working with the public and was refused work in the back office by her manager was unfairly dismissed, a tribunal has ruled. The employee was awarded more than £56,000 after Croydon Health Services NHS Trust (CHS) dismissed her from her role as a receptionist when she told occupational health (OH) that she was “petrified” of the general public.
The judge found that the trust contravened the Equality Act when it failed to make reasonable adjustments for D’Silva, and that she was unfairly dismissed. The employer had a duty to make reasonable adjustments or to take reasonable steps to investigate alternative work and consider redeployment and failed to do this.
The tribunal heard that the employee who suffered from stress and anxiety, worked at CHS as a receptionist for 18 years until her dismissal. Following a period of long-term absence for a stress-related problem, she returned to work to a a restructure and was required to deal with up to 100 patients a day at reception.
Following a stress risk assessment, D’Silva agreed with her new manager that she should have a phased return to work. After several failed attempts to return and to undertake alternative duties she was signed off sick again.
While still signed off sick, she saw occupational health which reported she remained “strongly of the view” that she wanted to return to work but was “absolutely petrified” of working in a patient-facing role and suggested, as a reasonable adjustment, that she should be removed from patient-facing duties and redeployed to a non-patient-facing role.
However, an absence review concluded there was “no outlook” for the employee to return and that her levels of sickness had been “unreasonably high”. She was dismissed with notice on grounds of capability due to ill-health, but was told any opportunities of redeployment would be considered. An appeal was unsuccessful.
The tribunal awarded her £6,780.54 compensation for unfair dismissal and £49,904 in compensation for contravention of the Equality Act 2010. The employer’s failure to proactively offer suitable redeployment roles amounted to a failure to make reasonable adjustments. It is the employer’s duty to make any reasonable adjustments, and not the employee’s responsibility to come up with suggestions of adjustments. This is particularly the case for large employers.
Landmark decision helps protect working mothers
An employment tribunal failed to take into account the “childcare disparity” faced by women when it said a nurse was not unfairly dismissed because she was unable to work weekends, the Employment Appeal Tribunal (EAT) has ruled.
This is being seen as a landmark ruling that will help protect the rights of working mothers, recognising the childcare burden as a fact for future discrimination cases.
The ruling comes as a victory for a community nurse who is arguing she was unfairly dismissed and faced indirect sex discrimination from North Cumbria Integrated Care NHS Foundation Trust after it introduced a new flexible working policy that required her to work some weekends. She had previously worked fixed days because of her childcare responsibilities for three children, including two with disabilities, and was dismissed because she was unable to comply with the new requirements.
An initial employment tribunal had ruled that the dismissal was not unfair, finding that “being a female with caring responsibilities” was not a protected under the Equality Act because, while sex is protected characteristic, her “sex and her caring responsibilities cannot be conflated in this way”.
The initial tribunal also ruled that, as all the other women in the nurse’s team were able to work with the new flexible working requirement – including those with childcare responsibilities – the requirement did not create a group disadvantage that she could have based her claim on.
However, the EAT said this tribunal had erred when it limited the comparison to just the team of nurses she was working with, finding that because the new flexible working policy was rolled out across the trust, the pool of comparison should have included all of the trust’s community nurses.
The EAT also said the tribunal was wrong to rule that the new flexible working policy did not create a group disadvantage because it did not recognise the childcare burden disproportionately faced by women.
Because the nature of the flexible working requirement meant nurses had to work on days required by the trust, and did not mean nurses had the flexibility to choose when they worked, it was an arrangement “that was inherently more likely to produce a detrimental effect, which disproportionately affected women”.
The case will now be reheard at an employment tribunal.
Failed to act on reports of sexual harassment resulted in tribunal
An employment tribunal has heard that an HR Director allegedly “sat on” reports of sexual harassment by a consultant working for Selafield, the nuclear decommissioning authority. She claimed that her contract was ended after she blew the whistle on work harassment.
The worker was contracted as a consultant to provide support with an equality, diversity and inclusion remit.
The consultant advised the HR Director about an anonymous report alleging sexual harassment which was received through a confidential reporting system in place in the organisation. In a witness statement, the consultant, who was classed as a “worker” and therefore permitted to raise a claim in the employment tribunal, claimed that the HR Director told her: “I’ve sat on this for weeks.”
In addition to this, she claimed that the director also asked her to take part in a covert investigation to look at issues raised in the report. She refused and advised that a formal investigation was conducted. A further suggestion was made to undertake an undercover investigation, using focus groups to ask staff questions.
The tribunal is on-going but the allegations shine a light on reporting sexual harassment and tackling it in the workplace. Sexual harassment is “unwanted behaviour of a sexual nature” and the law protects employees, workers, contractors, self-employed and job applicants from this. The unwanted behaviour must have either violated someone’s dignity, or created a hostile environment for them, whether it was intended or not.
A recent survey by the TUC has found that 52% of women have been victims of unwanted sexual behaviours at work – from groping to inappropriate jokes. It is therefore crucial that employers do all that they can to prevent sexual harassment in the workplace.
Employees must be clear that this type of behaviour is unacceptable and aware of the consequences of breaching policies and importantly, all complaints must be taken seriously and investigated thoroughly.
How to manage hybrid working
Many employers are seriously considering what “working” will look like once the government allows all office-working to resume. Some employers will make a full return to the office; some will continue working remotely and others will consider a hybrid model of work that sees employees split their time between working in an office and at home.
For those that are thinking about a hybrid approach what are the things that employers should consider?
Decide what the model should look like
There needs to be a decision about where people work when and (to some extent) how they wish to do so. This can include working at multiple sites, at clients’ premises, at home or in other suitable places. Staff may attend the workplace for part of their working week and work from home, or elsewhere, remotely for the rest of the time. Although hybrid working usually involves homeworking, it’s not the same as homeworking, where an employee works all (or almost all) of their working hours from home.
Decide whether alternative arrangements are restricted to certain roles
There are some roles which might be better suited to office working and others where staff need to be physically present in order to do their jobs. The following questions may be relevant:
- Can they carry out the main functions of their role from home?
- Do they need regular face-to-face management?
- Are they self-motivated? Can they separate their work and home lives?
- How much attendance on-site is reasonably required?
- Do they [have] a suitable remote working environment? Will they have to supervise children or look after other people during their working time?”
Flexibility of working hours
Employers will have to consider what hours they wish staff to work and what days they are expected to be in the office. Whichever option is selected it is important to make sure that contractual arrangements are agreed in advance and regular reviews of the arrangements are planned.
Finding innovative ways to meet
There has been a shift towards finding innovative ways to meet and train, away from the more traditional office-based only meetings and more businesses are trialling holding meetings or conducting training outside. Whilst using outdoor spaces is far from a new concept, during the COVID-19 pandemic, many businesses have had to shift from their usual office-based meeting space due to the difficulty surrounding ensuring social distancing and strict government protocols. This has led to the widely recognised ‘outdoor meeting’ and studies show that this could actually be hugely beneficial for many reasons, including social health, enhanced creativity, productivity and intelligence from workers simply from being outdoors in a new environment to the standard office space.
There is also compelling evidence that highlights the benefits of being outside. For instance, 20 minutes of fresh air can make people feel more energised and alive – with or without exercise. In addition to this, evidence suggests that outdoor meetings could improve communication between colleagues, perhaps due to the casual of the environment. It’s also said to be more social and thus can develop relationships within the workplace that could lead to better teamwork and better relationships.
With copious evidence demonstrating the benefits of outdoor meetings, it may pose the question of why this was never incorporated into day-to-day office routines pre COVID-19. Especially in the UK, the weather has to play a big part in why people tend to stay indoors. However, between the months of April – August at least, there should be and could be many opportunities for outdoor/walking meetings. Having a backup plan in case the weather takes a turn would allow individuals to feel more relaxed towards arranging an outdoor meeting as there wouldn’t be the fear of having to cancel or rearrange. Organising in advance would also allow individuals to bring appropriate clothing and therefore be more inclined to agree to an outdoor meeting space.
There is also the belief that individuals would be less distracted if outdoor meeting were incorporated into office life, as the usual checking of emails / phone calls would be less likely to happen. It may seem counterintuitive, but outdoor meetings spaces also have fewer interruptions, and it would remove the worry about overrunning into another booked slot.
As with many things, COVID-19 has turned our previous notions of “normal” completely on their heads, and the idea of being back to normality still seems like a lifetime away in some respects. Therefore, we should benefit from these changes, find a positive in a negative situation and continue to develop innovative learning within the business.
Employers welcome further delay to in-person right to work checks
A further delay to the reintroduction of in-person right to work checks has been welcomed by employers.
However, employers are requesting for longer-term review of recruitment practices as digital screening is extended to the end of August.
Employers will now be required to resume in-person checks from 1 September.
A Home Office spokesperson said this latest postponement was because of the “benefits the adjusted checks have brought employers”, and that the Home Office was “reviewing whether there are changes we can make to the right to work scheme to increase the digital checking aspects, including through the use of specialist technologies”.
This is the second time the reintroduction of in-person checks has been pushed back. In-person checks were initially billed to be brought back in May, however after lobbying from business groups this deadline was pushed back to 21 Jun to bring them in line with when the government had hoped to end the last remaining lockdown restrictions.
Checking an individual’s right to work using the temporary COVID-19 adjusted check measures
Up to and including 31 August 2021, if you are carrying out a temporary adjusted check, you must:
- ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
- arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19
- if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking servicewhile doing a video call – the applicant must give you permission to view their details.
It remains an offence to knowingly employ anyone who does not have the right to work in the UK with a penalty of £20,000 per individual.
Reports of employment up by 197,000 and more people working from home
Number of vacancies now approaching pre-pandemic levels as experts urge employers to focus on creating ‘better jobs’ to attract talent.
The number of payrolled employees surged in May, official figures have shown, as the economy continues to recover from the effects of the coronavirus crisis,
Figures from the Office for National Statistics (ONS) show that the number of payrolled employees increased by 197,000 in May, the largest monthly increase since records began in 2014, with the accommodation and food services sector, people under 25 and those living in London seeing the largest increase in employment.
These were also the three groups that saw the largest fall in employment at the start of the pandemic.
Employment in May reached 28.5 million, still more than half a million fewer people in employment than before the pandemic hit.
Vacancies for jobs also show positive signs of recovery, with opportunities close to levels seen in March last year.
The economic recovery appeared to be “in full swing” with employer confidence returning. But, he said, employers needed to focus on creating “better jobs” if they wanted to fill vacancies and ensure a solid recovery.
Employers should look at job design and offer better terms including wages, training opportunities and benefits such as flexible working.
The recent easin of restrictions – including the reopening of indoor hospitality – were the driving force behind the surge in hiring. However, the pace of the recovery has led to some employers struggling to recruit.
There is still a “Covid employment gap” of 2.8 million workers who were either fully or partially furloughed, or out of work completely. With emergency support starting to be phased out over the next few weeks, and ended completely by October, this gap will need to be closed a lot more to prevent a worrying rise in unemployment later this year.
A separate ONS report this week found the proportion of adults working from home at least some of the time increased to 37 per cent in 2020, up from 27 per cent the year before.
The report found that 85 per cent of adults were in favour of using a hybrid working approach in the future, with improvements to work-life balance cited most often as the main positive, while a quarter (24 per cent) of businesses stated that they intended to use increased homeworking going forward.
For employers, reduced overheads and improved staff wellbeing were among the reasons to use or increase home working in the future.
However, businesses reported “reduced communication” and “negative impact on working culture” as reasons to not use home working as a permanent business model as restrictions are eased.
Supermarket worker who called boss a ‘young idiot’ on Facebook was unfairly dismissed, tribunal rules
Judge says retailer’s decision to fire employee who had become ‘thorn in management’s side’ was not within the band of reasonable responses.
An online shopper for supermarket Sainsbury’s was unfairly dismissed after she told a former colleague that her new manager was a “young idiot” in a Facebook comment, a tribunal has ruled.
68-year-old Miss Spence, whose daughter had created the Facebook account for her, told the tribunal she believed she was contacting the former colleague privately and had no idea the comment was public.
The tribunal said that her dismissal, which happened after she questioned whether the disciplinary manager was in a romantic relationship with the manager referenced in the Facebook comment, was “manifestly inappropriate”.
Further claims for unpaid holiday pay were dismissed.
The tribunal heard that Spence was employed at Sainsbury’s Cameron Toll premises in Edinburgh from 4 October 1995 until her termination on 17 July 2019. Her most recent online shopper role involved picking orders for online deliveries, and consisted of two 6.5-hour shifts per week because of a disability. Prior to the incident, she had no disciplinary action against her in her 24 years of employment.
In 2017, Spence’s daughter created a Facebook profile for her, and Spence understood that all of her posts would be private. The tribunal also heard that Spence asked her daughter to remove the reference to her employment at Sainsbury’s, but she did not.
On 8 September 2018, Spence posted a comment about her new manager, Mr Macbride, in response to a post from a former colleague. Spence wrote: “we r having problems at work with new manager he’s a young idiot hasn’t got a clue how to run the department will tell u about it next time I c u take care”
Because of her privacy settings, only seven other people could see the post, but one of them was an existing manager who took a screenshot of Spence’s comment and sent it to the senior management team.
Spence was then invited to an investigatory meeting and subsequent disciplinary hearing for bringing the brand into disrepute and breaching the company’s fair treatment and equality, diversity and inclusion policies.
The tribunal found that Sainsbury’s had various HR policies that Spence had had no training on, such as social media guidelines, and the equality, diversity and inclusion policy which states that line managers must make sure colleagues understand the policy. However Spence had no conversations with her line manager on this policy outside of the disciplinary process.
The disciplinary hearing was chaired by customer trading manager Ms Fraser, and Spence was represented by her trade union representative Mr Ireland. She was issued a final written warning letter on 24 October 2018 which remained active for 12 months, but Ireland advised Spence to not appeal against the decision.
Spence did raise a fair treatment at work complaint against the manager who shared the screenshot of her Facebook comment, which was not upheld.
She also raised a grievance against Macbride for “discrimination arising from her disability”, however this was not upheld. The tribunal found Sainsbury’s “did not follow its processes” when dealing with this grievance as there were no meetings held.
Then, in January 2019, Spence raised concerns with Ireland, as her union representative, that Fraser was in a relationship with Macbride at the same time she was conducting the disciplinary process. Ireland informed Macbride of Spence’s concern, who then told Fraser.
Fraser then raised a formal fair treatment complaint against Spence, complaining that Spence had been asking questions about when Fraser and Macbride had entered a relationship.
The tribunal found that “at some point towards the end of 2019” Fraser and Macbride were in a relationship but at no stage were they asked about when they had entered a personal relationship, nor was Fraser asked about her relationship status when she carried out the disciplinary against Spence.
Fraser’s grievance was handled by a manager at another store, Ms Mitchell, who upheld Fraser’s complaint against Spence, and invited her to a meeting to discuss her misconduct, which she described as “a breach of the company’s fair treatment and equality, diversity and inclusion policies”.
Mitchell concluded that neither Fraser or Macbride were lying in their statements and invited Spence to a disciplinary meeting on 24 April 2019.
The meeting was chaired by operations manager Mr Hogg, and the tribunal noted that he was “unwilling to listen” to Spence’s claims that she had been bullied and raised various grievances about how her colleagues treated her.
Hogg did not investigate any of Spence’s claims raised in the disciplinary meeting and dismissed her for misconduct.
The tribunal said it had “no hesitation” in concluding that even a final written warning was “manifestly inappropriate”. It also said that Hogg’s conclusion that she had committed misconduct and should be dismissed was “fundamentally flawed”.
Judge A Jones said it was clear that Hogg thought the only options available to him was “no action or dismissal”, adding that “in these circumstances, the dismissal of [Spence] was not within the band of reasonable responses and therefore unfair”.
Jones said: “While it was clear that [Spence] had become a thorn in the side of the managers to whom she reported, the Tribunal did not accept that [Spence] raising genuine and valid questions as to whether a manager who had issued her with a final written warning had a conflict of interest at the relevant time amounted to blameworthy conduct.”
Spence was awarded a total of £8,357.20, consisting of a basic award of £3,390 and a compensatory award of £4,867.20.
This ruling is a “useful reminder” for employers when deciding on an appropriate sanction along with it is not just the offence but the quality of the investigation and approaching the disciplinary with an open mind that will count towards fairness.
employers needed to have an “open mind” when dealing with disciplinary allegations.
An employer must be prepared to form an opinion based on all the facts of the circumstances without being swayed by preconceptions, without evidence, any allegations that an employee has brought a company into disrepute might be “fundamentally flawed, and resulting dismissals may be built on fiction.
Experts express concern over compulsory vaccines for care home workers
Employers in the sector could struggle to enforce a vaccine mandate, commentators say, and caution other organisations against following suit.
Covid-19 vaccinations are set to become compulsory for care home staff in England as part of new legislation announced by the government yesterday.
Under the new rules, from October this year anyone working in a care home where residents need nursing or personal care will need to have had two doses of a Covid vaccine.
This will apply to all workers employed by the care home, agency workers, volunteers, and anyone coming into the care home to do work, unless they are medically exempt.
The legislation is still subject to parliamentary approval, and there will be a 16-week grace period from when the new law comes into effect.
The government has said it would also consult on whether to extend the vaccination mandate beyond care homes to cover care workers who work with other vulnerable groups.
Health secretary Matt Hancock said: “We have a responsibility to do all we can to safeguard those receiving care including in the NHS and so will be consulting further on whether to extend to other health and social care workers.
This is the right thing to do and a vitally important step to continue protecting care homes now and in the future. I’d urge anyone working in care homes to get their jab as soon as possible.”
However, while a vaccination mandate would lower the risk of the virus in care homes but such a requirement wasn’t straightforward. The worry for the care sector is the impact this might have on recruitment and staff retention, given that there is already a shortage of staff in this sector.
The detail of how this is to be implemented remains to be seen but this unprecedented move could prove unpopular with care staff who do not wish to have the vaccine.
Is presenteeism an issue in the workplace?
There is significant evidence that presenteeism is widespread in the UK and it’s having a huge impact on productivity. According to the Chartered Management Institute, “UK employees are three times as likely to go to work unwell than pull a sickie.”
While on the face of things, this might not sound like a problem, if you dig into the issues associated with presenteeism the implications are not pretty.
Simply put, presenteeism is the phenomenon where employees attend work while feeling unwell and don’t perform at their full capacity.
Presenteeism has many different faces. An employee might be dragging themselves into the office despite having a really nasty bug. Needless to say, they’re not going to get much work done and will probably pass the virus to their colleagues.
Other forms of presenteeism are less visible. Employees may be suffering from mental health problems and still turning up at the office. How might this affect their decision-making abilities? What about the effect on the people they work with? And will this affect their mental health in the longer term.
The decision by an employee on whether to call in sick or turn up at work ill is rarely based on simple information around health and the ability to perform specific tasks. There are many factors which influence workers to make such decisions. The drivers of presenteeism include:
- Cultural factors
- Team commitment
- Job-related pressures and workload
- Contractual obligations and job security
- Financial circumstances
- Certain health factors
- A poor work-life balance
Presenteeism has mostly negative effects, including:
- Productivity loss
- Poor decision making
- Lower team morale
- Poor physical and mental employee health
- Mental health damage
- Workplace epidemics such as cold and sickness
How can small businesses deal with presenteeism?
There’s no magic button to prevent presenteeism. It’s a complex situation with a range of drivers. Here are some of the ways in which small businesses can start to understand presenteeism and work towards reducing it.
As many as 62% of 18-24 year olds say they’ve felt pressure to be in work while unwell. In this situation, managers should encourage these employees to take time off if and when they need