November, 2021

Employee surveillance on the rise

The number of employees reporting being monitored by their employer while at work has surged over the last six months, research has found, including a doubling in the use of web-cam monitoring.

A poll of 2,400 workers by the union Prospect found one in three of workers reported being monitored at work in October this year, up from a quarter in April 2021.

Additionally, the number of remote workers who report being monitored by an at-home camera has more than doubled since April 2021. More than one in 10 remote workers reported having a camera installed in their home, compared with just 5% six months ago.

While employers have the right to monitor employees, staff need to be informed of any surveillance and any measures businesses take need to be “relevant, necessary and respect people’s privacy”.

Employers should discuss potential monitoring with their employees before committing to surveillance. It may be that sharing work in progress on shared drives, having goal setting discussions and regular updates with line managers may be effective alternatives to at-home supervision. Employers must be wary of data protection laws when implementing employee surveillance.

Since the introduction of GDPR, there are legal considerations that employers must follow. They can no longer rely on employees giving their consent via a data protection clause in their employment contract. Employers must consider the legal reasons for monitoring staff and give employees sufficient advance information about any monitoring, including the type of monitoring, the reasons for monitoring, and the potential uses of the information collected through monitoring.

The trade union who conducted the research, Prospect has called on the Information Commissioner’s Office (ICO) to introduce stricter measures to combat workplace surveillance, including a total ban on webcam monitoring outside of calls and meetings, stating that employees should not be subject to digital surveillance without their informed consent, and adding that there should be clear rules, rights and expectations for both businesses and workers.

  • Posted on November 30th, 2021

Vet who challenged employer for flouting Covid rules was unfairly dismissed

A veterinary assistant who raised concerns about her employer’s unwillingness to create a Covid-secure workplace was unfairly dismissed, a tribunal has found. The tribunal found that despite arguing that the dismissal was for poor work performance, the employer’s evidence was “hopelessly unconvincing”.

The employee had been an assistant veterinary surgeon for only three months in March 2020 when the Government advised the UK population to avoid non-essential travel and contact and the employee asked her practice manager if she would be able to wear a mask when at work because she was asthmatic and concerned about contracting the virus.

At a staff meeting about Covid, the employer stated that it was like a “cold or flu” and was being “over-hyped by the press” but did agree that the employee could wear a mask. However, he also stated that there was “no need” for signs, notices, hand sanitiser or wipes. Following the meeting, the employee raised her concerns about the lack of measures to keep staff and clients safe.

She later attended a webinar organised by the British Veterinary Association (BVA) regarding Covid and sent what she learned to her employer in an email. The BVA recommended minimising contact with clients and colleagues, working from home where possible, and delaying routine work.

The employee asked the business owner to implement the BVA’s recommendations and also outlined her concern for friends and family and for her elderly grandmother whom she may have had to care for. Shortly afterwards, the Prime Minister announced the first lockdown and he business owner sent text messages to all the practice staff to say the practice would be open “as normal” and to come in at their normal times.

The tribunal heard that the employee felt “uneasy” the following morning at work and wanted time to consult with the Royal College of Veterinary Surgeons (RCVS), her profession’s regulatory body, because she didn’t want to breach the Veterinary Code of Practice. She told the tribunal that she avoided undertaking non-essential procedures the following day for this reason, but instead had told the employer she was not happy doing them in a “clinical sense” as a newly-qualified vet.

She spoke to the RCVS on the same day, which confirmed that depending on the circumstances, carrying out routine procedures might be a breach of the Veterinary Code of Practice. A meeting was called with the entire workforce and the employer continued to state that Covid was being “hyped up”. A nurse replied that the government was reacting with a lockdown because people are “dying” of something that is “literally [becoming] worse daily”, to which the business owner replied: “No, incorrect.”

The vet was subsequently dismissed as they felt that there was an unacceptable level of discord between her and the practice owner.

The tribunal noted the employer tried to argue that the reason for her dismissal was actually because of client complaints, lateness and completing records incorrectly. But concluded that this evidence was “hopelessly unconvincing” and that the reason for the dismissal was the employee raising a legitimate concern, which was in the public interest in a “reasonable and polite fashion” about health and safety during the pandemic. This amounted to a “Whistleblowing” complaint for which the minimum two years’ service was not required to raise a claim at the employment tribunal.

The amount of compensation has not yet been agreed but is expected to be substantial. Many employers do not realise that a whistleblowing complaint can result in a tribunal claim, with very little service. If an employee raises a complaint which may be in the public interest, it must be taken seriously!

  • Posted on November 30th, 2021

Calls to change UK immigration policy to address labour crisis

The Chartered Institute of Personnel and Development (CIPD) is calling for short-term changes to the UK’s immigration policy to address the current labour crisis, warning that the immediate skills shortages could undermine the government’s plans to create a high-wage, high-skill economy. It has also called for the apprenticeship levy to be reformed into a more flexible training levy, as well as a £60m-a-year investment to improve business support for SMEs on issues including people management and skills development.

This has arisen following the release of data showing that sectors including hospitality, health and social care and manufacturing are all facing challenges with hard-to-fill vacancies and require “urgent intervention”.

A poll of 2,000 employers found that there is a spike in labour shortages in these key sectors. The number of firms reporting hard-to-fill vacancies in the hospitality, arts and recreation sector increased to 51% this year, compared to just 12% in 2020. Similarly, 49% of firms in the health and social care sector, and 47% of manufacturing firms, also reported hard-to-fill vacancies.

The CIPD argue that there is a strong case for an immediate immigration safety valve to address the rising labour supply challenges some employers are facing. Brexit has resulted in a huge portion of the EU population leaving the UK, which means that industries such as hospitality and transport have suffered.  With the added pressure of the pandemic, the talent pool has shortened and the knock-on effect has been felt by many industries.

  • Posted on November 30th, 2021

Significant increase in tribunal claims relating to part time workers

It has been widely reported that the onset of the pandemic saw a shift in employees’ priorities, with many more asking for flexible working to improve their work-life balance, many wishing to work part time.

But it also appears that alleged unfair treatment of part-time staff has led to an increase in claims relating to part-time working regulations of over 767% in the past year. This is the sharpest rise in tribunal case topics over the past 18 months.

According to UK employment law, a person who works part time is anyone who works fewer hours than expected of a full-time worker in the same organisation. Broadly speaking this might be someone who works less than 35 hours per week.

The increase in claims has been attributed to the increase in the number of part-timers in the workplace because of Covid-induced reduced working hours. These tribunal statistics act as a warning to employers that part-time workers are protected by law under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Workers can claim compensation through the employment tribunal if they are dismissed or subject to less favourable treatment or detriment because of their part-time working hours. Where relevant, these claims can be made in addition to other unfair dismissal, constructive dismissal and/or discrimination claims.

There are several different claims part-time workers can make, including receiving a lower hourly pay than their full-time equivalents; not being considered for promotions that are offered to full-time staff; not being given the same benefits, being considered for dismissal before full-time staff are; and not having the same contractual entitlements, like enhanced annual leave or sick pay.

To make a claim, the employee must be able to establish that they work part time and have been treated less favourably in terms of their contractual entitlements or by being subjected to a detriment. They also have to be able to show that the treatment was based on their part-time status and identify a comparable full-time worker who didn’t experience the same situation.

To avoid the risk of claims, organisations should proactively take steps to support part-time employees and ensure they receive the same basic entitlements as comparable full-time colleagues. They should not select employees for contractual changes or make them redundant solely based on their working hours. Where redundancies are needed, organisations should apply a fair selection criteria across all of its affected employees, to objectively decide who should stay on and who should be made redundant.

Organisations should also remember that in situations where full-time workers become part-time workers (eg after accepting a flexible working request or enforcing a reduction in hours), employees are entitled to the same terms and conditions as their former full-time contracts. Essentially, the former contract serves as the full-time comparator when determining whether there is any less favourable treatment and will apply even when there is not a separate full-time comparator in post.

If you are evaluating your terms and conditions, ensure that you take advice from 121 HR Solutions to determine fairness across all types of employee.

  • Posted on November 29th, 2021

Job Offer withdrawn due to Depression

The Times have reported that a claim has been lodged stating that the claimant alleges she was offered her dream job with Police Scotland and had been given a start date after successfully completing two years of training, only to be told at the last minute that she would not be joining the force after all, after they learnt she had been prescribed anti-depressants by her GP.

 

Optima Health, who carry out medical assessments on behalf of the police, reportedly advised Beattie that she would need a “minimum of two years of wellness” without medication before she would be considered eligible to become a constable, she was “unable to take on the role and wishing her well for the future.”

 

A claim has been allegedly lodged with the Employment Tribunal, alleging the police had displayed “direct discrimination due to her depression”. Furthermore, that her offer was withdrawn because she was disabled.

When contacted the police told The Times: “We have not been notified about an employment tribunal nor have we received any correspondence regarding this.”

Prospective employers generally can’t ask candidates questions about their mental health during the hiring process but may do so once a job offer has been made.

 

Mental Health Charity MIND stated: “If, as a result of these questions, a prospective employer is concerned that your mental health problems may affect your ability to perform the job, they should seek more information or advice from your doctor or occupational health.

 

“If your job offer is taken away when you explain your mental health status, and without further assessment or investigation, this may be direct discrimination.”

An interesting case to watch for developments!

 

Employers should consider how they can help staff to speak up about problems that they may be experiencing. Signposting resources available such as counselling or promoting an open culture and good channels of communication where staff feel comfortable raising any problems they might have with colleagues and managers.

 

This could also help normalise conversations and break down the stigma, particularly when it comes to talking about mental health. If you need support with such matters or wish to know how 121 HR Solutions can support your business please do not hesitate to call us on 0800 9995 121

  • Posted on November 19th, 2021

Why managers need to lead by example to protect staff wellbeing

Managers are more stretched and overworked than ever but there are simple ways they can role model healthy behaviour to their teams.

Within society, a culture of overworking is evolving, with long hours and extreme exhaustion symbolising professional success. Research shows employees are putting in an average of nine hours’ unpaid overtime per week.

Many of us simply work long hours to keep up with workloads, pay off debt, or so we’re first in line for that dream promotion.

However, for some employees that adopt a culture of long, intense work hours, there’s often a performative element involved. Overwork can be seen as a status symbol, signalling the pathway towards employee success.

The added impact of Covid has meant that many individuals across organisations are now overworking, including managers and those in other senior positions.

Regrettably, furlough schemes and mass redundancies have resulted in tighter deadlines, increased workloads and increased fears surrounding job security. Consequently, managers are experiencing heightened strain as they take on the additional work of newly missing team members.

Many individuals in leadership positions fail to recognise the significant risks of overworking, with some persuading themselves there’s no problem with it.

It is important therefore that managers can acknowledge they risk poor mental and physical health, including burnout if they persist with overworking.

Not only this, but they are also modelling unhealthy behaviours to their teams, which could have wide reaching adverse ramifications. This is especially important given that the problem of overworking is a top-down issue which can only be tackled by a fundamental shift at management levels.

The more employees follow unhealthy examples, the more likely it is negative side-effects and health issues extend to become a company-wide problem.

Employees should take advantage of any company benefits like lunchtime fitness classes and discounted or free memberships to local gyms. Look for opportunities to participate in sponsored fitness events like a fundraising run. Encourage people to join you, to promote a culture of more physical activity across your teams.

For those working from home, offer a level of flexibility for when people choose to exercise. This is so employees feel secure exercising when it is convenient for them.

It’s important that those who began a fitness routine during lockdown do not stop because they feel guilty working out when others are in the office.

  • Posted on November 19th, 2021

Should you offer an appeal following redundancy consultation?

While redundancy is a potentially fair reason for dismissal, the employer will need to also show that a fair dismissal procedure has been followed. This may in some circumstances involve identifying the affected employees (a pool) and going through a selection process. It will always be expected that an employer should, as a minimum, provide advance warning to the employees and consult with them in relation to the situation, to explore whether there are any possible alternatives.

In Gwynedd Council v Barratt & Hughes the redundancy procedure followed by the employer was challenged on a number of grounds including the fact that the employer had failed to provide any opportunity for the employees to appeal against the final decision to make them redundant.

It was argued that the failure to provide an appeal was so fundamental it had to be regarded as fatal to the fairness of any dismissal process.

Both employees were PE teachers at a community secondary school which the local council had decided would be replaced with a new school providing primary and secondary education. They were informed that they were at risk of redundancy and they would need to apply for posts within the new school. Their applications for other posts were not successful and they were dismissed on grounds of redundancy.

They were not given an opportunity to appeal the dismissal and raised this with their employer who apologised for the oversight, but said that it wouldn’t have made any difference to the outcome because their ‘dismissals were caused by the closure of the school and that no appeal panel would have been able to reverse the fact of closure and thus avoid dismissals’.

Both submitted a claim for unfair dismissal.

It was held that the dismissals were unfair and that there had been a lack of effective and meaningful consultation. The employment tribunal considered that the school had attempted to ‘circumvent employment rights’ by adopting a procedure which placed staff at risk of redundancy and then simply told them to apply for other posts at the school which was replacing the one in which they had worked.

It was also critical of the employer for not providing any form of an appeal process that the employees could follow which it considered would in any event make the dismissals unfair.

The decision was the subject of an appeal and the case proceeded to the Court of Appeal.

The appellate court has confirmed that while the unfair dismissal conclusion reached by the employment tribunal should stand, taking into account there were a number of faults with the process followed, the absence of an appeal in a redundancy situation would not necessarily make the dismissal unfair.

When assessing whether the employer has followed a fair procedure, the appropriate test is whether it falls within the band of reasonable responses. Each case will depend on its own facts.

The statutory test of fairness does not make a reference to the availability of an appeal. Where there has been full and proper consultation about the redundancy situation the employee will have already had the opportunity to challenge their selection and ask to be considered for alternative roles.

However, in practice an appeal will usually be offered as there will be an expectation that it will form part of the process. It will often be in the best interests of the employer to provide one too. It not only reduces the risks of disputes regarding fairness, but it also provides an opportunity for prior procedural errors to be corrected which can potentially turn what would have been an unfair dismissal into a fair one.

121 HR Solutions can manage the redundancy process for any employer providing professional, impartial and practical advice whether that would be managing the full process or providing guidance to the management team on the process.

  • Posted on November 19th, 2021

Whistleblower minimum wage complaints at lowest level in four years

Whistleblower reports of national minimum wage violations fell to just 2,488 for the past year, down from 2,580 in the previous 12 months. This puts direct complaints for the financial year 2020-21 at the lowest level in four years.

The report published stated that although extensive furlough in hospitality and retail sectors during the pandemic was partly responsible for the decline in numbers, they also showed that employers were getting much better at ensuring workers were not being paid rates below the NMW. Staff in hospitality and retail were among the most likely to be paid close to the minimum wage, and therefore would have been among those most likely to submit a NMW complaint, said the law firm.

Compliance had improved among with companies having breached national minimum wage law in the past due to technicalities, such as extra time spent in work but not technically working. For example, this could have included staff at airports having to spend an extra 30 minutes going through security to get to work, or warehouse staff having to go through multiple security checks at the start/end of each shift. If HMRC finds an employer has not paid at least the minimum wage, they can issue a fine for not paying the correct rate of pay. In addition, HMRC will regularly “name and shame” businesses that have paid their employees below the minimum wage. In 2017, HMRC launched an online complaint system for reporting potential breaches of NMW laws. This initially led to a sixfold increase in complaints from 710 in 2016/17 to 4,237 in 2017/18. However, the numbers have since fallen significantly as businesses become better at complying with NMW laws.

 

The current NMW rates are as below:

 

23 and over 21 to 22 18 to 20 Under 18 Apprentice
£8.91 £8.36 £6.56 £4.62 £4.30

 

  • Posted on November 19th, 2021

Sacked for being too young!

A 14-year-old schoolgirl has become the youngest person in Britain to win a ‘direct discrimination’ claim.

In 2019 the claimant took a trial shift in a cafe at an Equestrian Centre in Ayrshire. She had indicated her date of birth on her application form- age of 14. Having performed well on her first day, the manager said he was pleased with her work but sent her home early during her second shift. The reason stated was that she was being fired for “health and safety reasons” as the company’s accountant said she was too young for the job.

The business later stated she had been sacked as the position was ‘’too demanding”. The employment tribunal panel, however, ruled that the company had not proved that age was not a factor in its decision to dismiss the claimant.

The employment judge said: “it was far more likely that the respondent had said something to the effect that the claimant was too young for the role, and that the accountant had said that it was for health and safety reasons”. He praised the young claimant for delivering evidence “clearly, candidly, and calmly”.

Having told the employment tribunal in Glasgow that it caused her distress, she was awarded nearly £3,000 in damages as a victim of “direct discrimination”.

  • Posted on November 16th, 2021

Dentist vs frequent working meetings?

A recent survey has revealed that more than 60% of employees would rather attend the dentist instead of having to frequently attend work meetings whether virtual or in-person. The survey concluded that this could be down to the impact of back-to-back work meetings on employee’s wellbeing.

It seems that two meetings in a row are most likely to make employees feel low on energy, with over a third stating this, followed by feeling stressed and feeling distracted.

The survey suggests that business owners and managers need to adapt the way meetings are conducted to suit the new working environment, whether by fundamentally changing the structure of meetings, or by seeking feedback from employees about what can make them feel more engaged and productive in meetings.

One way to achieve better meeting outcomes is to ensure that each meeting has a set goal or agenda so that all talking points are covered, and in a timely manner!

  • Posted on November 16th, 2021

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