Whistleblower was unfairly dismissed
A cleaner was automatically unfairly dismissed after he made protected disclosures through his union about working conditions, a tribunal has ruled. The employer claimed that the employee was dismissed for “poor performance” after he raised concerns about safety at work and the lack of personal protective equipment (PPE) during the pandemic. The complaints included being pressured to work extra time; inadequate equipment; having to drive a car with expired insurance; and not being given gloves to use when cleaning toilets.
The employer claimed that the employee was dismissed due to client complaints but the employee was not shown any of the client complaints that allegedly led to his dismissal, nor was any process followed in dismissing him.
The tribunal judge found that the real reason for the dismissal was because his employer was “annoyed he had raised protected disclosures and used his trade union in order to do so and was punishing him as a result”.
The employee was sent a letter informing him that he was dismissed with effect on 21 September, on the basis of “poor performance following alleged complaints from clients”. However, the tribunal noted that the complaints were not shown to the employee and no process was followed in dismissing him.
The tribunal ruled that the claims of unfair and automatic unfair dismissal were well-founded, as was his claim of unlawful detriment.
There is a statutory prohibition on subjecting employees to any detriment or dismissing them because of whistleblowing or trade union activities. A ‘protected disclosure’ or ‘whistleblowing’ by an employee may not be described as such when it is raised and it is down to the employer to recognise it as this.
Failure to discount disability-related absence resulted in unfair dismissal
A senior nurse who was sacked for her “unacceptable” sickness absence record caused by migraines, anxiety and depression was unfairly dismissed and discriminated against, a tribunal has found.
An employment tribunal heard that the claimant was the sole carer for her elderly grandmother, suffered from severe headaches, depression and anxiety, which are considered disabilities. There was a failure from her employer to adjust absence targets meant which meant that no allowances were made for any absences beyond those caused by her disability. The tribunal heard that since the start of her employment, the claimant had amassed a total of almost 300 days of absence, the vast majority related to migraines. An occupational health report confirmed that providing care for her grandmother was the main cause of her stress and contributed to the “increased frequency” in migraines
The judge pointed out that the purpose of a reasonable adjustment was to “ensure a level playing field”, but that this could not be achieved “if all of the absences allowed are taken up with disability-related matters, leaving no room for any other legitimate absence”.
The judge also concluded that the dismissal letter demonstrated that the nurse had been dismissed because she failed to meet her attendance targets, stating that the claimant had disabilities which caused her to be absent from work and for which she was ultimately dismissed.
Any health condition may be considered a disability under the Equality Act if it is long term and the symptoms cause an effect on the employee’s ability to carry out normal day-to-day activities.Employers have a legal duty to implement reasonable adjustment to support them in the workplace. This includes adequate support measures, including reasonable adjustments and a sensitive, understanding approach to any health-related conversations.
A compensatory award is being considered at a later hearing.
Is your equal ops training “wholly inadequate”?
A recent tribunal case, Fricker v Gartner Ltd has demonstrated that workplace language, and what society finds to be “acceptable” language is changing. This is in the context of what is referred to as “banter” in the office. Banter is often used to describe language which is in fact, discriminatory and this case is an example of an employer not taking sufficient steps to prevent inappropriate language in the workplace, leading to a discrimination case.
The claim related to sexual harassment and constructive unfair dismissal. The claimant in this case had repeatedly been referred to by her boss as a “good girl” despite being a mother in her thirties. She strongly objected to her line manager’s use of the phrase but he continued to use this language and his behaviour became increasingly inappropriate.
Further complaints from the complainant lead to the manager starting a performance improvement process which was designed to manage her out of the business. When the claimant challenged this, she received no support and other managers defended the line manager’s behaviour. Claims of sexual harassment and constructive dismissal were successful.
When responding to the claim, the tribunal judge stated that “Language evolves over time. Words and phrases that might once have seemed harmless in the past are now regarded as racial, homophobic and sexist slurs.”
The employer did have an Equal Opportunities Policy in place, but the judge noted that it was “really in name only as its drafting was poor; generalised and outmoded and not really committing to anything more than laudable aspirations”.
It was also noted that the manager’s training was “entry-level” and “not at all sophisticated” amounting to two sessions, both of which lasted less than an hour. The training had also occurred several years before the claim was raised. The employer tried to suggest in their defence that they had taken “all reasonable steps” to prevent this type of behaviour in the workplace, using the policy and training as examples of the steps taken. The employment judge was damning and stated that the defence was “wholly inadequate”.
The judge listed what he would regard as the minimum requirement from an employer, as follows:
- implementation and regular review of a properly drafted equal opportunities policy;
- evidence that the employer had taken steps to ensure all employees were aware of the policy;
- the provision of and regular updating of equal opportunities training; and
- having an effective policy to deal with complaints.
If you feel that your training for managers is “wholly inadequate” 121 HR Solutions can help. Call us on 0800 9995 121 for further information.
Time to review your absence process?
As employers grapple with managing “normal” absence we wanted to provide guidance on how to manage absence fairly and consistently.
Having an absence management policy in place can help employers gain an overview of absence levels in their organisation, manage excessive absences and put in place reasonable adjustments for disabled employees. A good policy should cove:
- return to work interviews
- informal discussion of absence levels
- formal process to discuss concerns
- formal disciplinary action
Key to managing absence is setting out expectations and confirming if trigger points will be used to manage absence. What is reasonable will depend on the organisation, the nature of the work and specific role. Often, various stages at which various processes will be triggered are set out, such as an informal discussion, formal discussion followed by a formal warning, eventually leading to dismissal.
It is worth noting that some employees may have high absence levels due to a condition that would be regarded as a disability under the Equality Act 2010. Where this is the case, employers must act carefully, so as not to treat these employees less favourably than their colleagues.
Where there is a disability, the Equality Act 2010 requires employers to make reasonable adjustments to accommodate the disability and to enable the employee to perform their duties. These reasonable adjustments also apply to absence triggers and depending on the nature and severity of the disability, these may need to be either adjusted for the individual circumstances or removed altogether if the circumstances require it.
Any action taken to adjust or remove triggers should be done in consultation with the employee’s doctor. This is to ensure that the adjustment is necessary (not all disabilities require excessive time away from work) and sufficient to meet the individual’s needs. Failure to take such action could result in any dismissal based on absence triggers being found to be unfair, and potentially discriminatory too.
Another situation that requires absences to be excluded from absence triggers are temporary conditions, such as pregnancy, that can impact an employee’s ability to attend work consistently. Again, to these employees, absence triggers should not be applied, as it would be discriminatory to do so. It is also worth noting that an employee who has suffered a miscarriage remains protected as though still pregnant for two weeks after the event.
Finally, absences that are connected with family friendly leave, such as emergency time off for dependents, parental bereavement leave, etc should also not be included in absence triggers. This is due to the fact these rights are protected in law and therefore employees should not suffer a detriment from exercising them, and these are not sickness absences but are connected to a situation with another.
If you feel that your absence policy requires to be reviewed, contact us on email@example.com
Appraisals – to be or not to be?
Many businesses avoid appraisals on the basis that if everything seems fine, why waste time when we have work to get on with?
However, with many employees still working from home for some or all of their time, a good appraisal system is now more important than ever before.
Employers are not legally obliged to conduct appraisals but failure to assess performance and provide feedback can have several ramifications; how can an employer objectively justify who should receive pay increases and bonuses or tell an employee that they need to improve?
Appraisals should have some basis of measurement which is consistent. In the event of an employment claim, objective data is compelling when linked to appraisals. Anything that is quantitative data, including fee income, number of calls made, will be difficult to challenge. However, tribunals accept that employees are not robots and therefore it is reasonable for employers to also use subjective criteria such as attitude, potential, etc. They would expect the scores for these criteria to be backed up with evidence which is measured consistently amongst colleagues.
It may also be important to obtain feedback from those who work closely with the employee which may include those in other departments.
It is also important that appraisals are used not just to praise employees but also to provide constructive feedback where there is a problem. This gives employers the perfect platform to formally performance manage if things do not improve.
Appraisals are a keen component of recruitment and retention as well as keeping employers out of the employment tribunal. Employers should ideally:
- Make appraisal questions and/or scoring as objective as possible
- Consider having two managers moderate the scores
- Obtain views from those who work with the employee and do not limit to personal experiences
- Appraise regularly
- Not forget about absent employees
Should you be considering training on how to conduct Appraisals for your managers/supervisors/team leaders then 121 HR Solutions can deliver this for you, contact firstname.lastname@example.org discuss further.
Call for statutory leave for unpaid carers
Proposed legislation could benefit more than two million employees who have unpaid caring responsibilities. Unpaid carers could benefit from one week of statutory unpaid leave under a proposal expected to be heard by Parliament later this year.
Wendy Chamberlain, a Liberal Democrat MP, has said she intends to introduce a Private Members Bill that would give individuals with caring responsibilities the right to five unpaid days off per year. If successful, the Carers’ Leave Bill could benefit up to 2.34 million employees who are unpaid carers.
Currently, parents have a right to a total of 18 weeks’ unpaid parental leave for each child up to the age of 18. However there is no statutory right to any other unpaid leave to care for other dependants.
121 HR Solutions keeps you abreast of all employment legislative changes, contact us today to obtain our Overview of Services to see how we can manage your HR for you – 0800 9995121.
Nurse awarded £462k for unfair dismissal
A senior district nurse who was unfairly dismissed after voicing her intention to launch whistleblowing proceedings has been awarded more than £462,000 in compensation following a four-year legal battle.
The former nurse had 38 years’ experience in the NHS and oversaw a team of around 50 district nurses and was dismissed after she raised concerns about patient safety due to pressure on district nursing resources.
The employee had voiced concerns about a new local authority requirement for district nurses to monitor patients’ prescriptions. She said it meant a sudden increase of around 1,000 extra visits a month for the service with no extra resources. Over the next 10 months, she made numerous reports about the health or safety of patients and staff being put at risk.
The death of a patient prompted a meeting in which the nurse suggested that the incident could have been prevented had her earlier concerns been addressed. Later that month, she told a manager that she wished to begin a formal whistleblowing procedure.
She then went on annual leave, but on her return she was told she was suspended over allegations of gross misconduct relating to her leadership. She was suspended for 18 months and after various investigations and appeals she was eventually dismissed.
The employment tribunal found that the nurse’s complaints amounted to protected disclosures (known as whistleblowing). The investigation into the alleged misconduct had been “inadequate and unreasonable in all the circumstances of the case” and had been designed to dismiss the employee because she had made protected disclosures.
The employment tribunal awarded £462,612.26 for unfair dismissal, loss of earnings and interest.
How do you support your employees with their Mental health?
A recent Deloitte report has estimated that the total annual cost of poor mental health for employers has increased by 25% since 2019.
Work can be mentally demanding at times, but when it’s happening frequently or over a long period of time, it can lead to stress and really start to affect our physical and mental health.
Building a supportive workplace, where workers look out for each other, feel able to talk about how they are feeling and relationships are positive, can help to reduce and prevent, stress developing.
The law requires employers to assess the potential risk from work related stress and act on it. Here are ways in which that can be done:
1. reach out and have the conversations
2. recognise the signs of stress
3. respond to any risks identified
4. reflect on what’s happened
5. make it routine
121 HR Solutions are running Mental Health First Aid workshops during August and September, should you wish further information contact email@example.com
Fitnote changes from 1 July 2022
From 1 July 2022 a wider range of healthcare professionals will be able to certify fit notes. The measure will mean that occupational therapists, some pharmacists, and physiotherapists will be able to certify and issue fit notes.
The Government set out that this measure has been introduced with the aim of reducing pressure on GP’s as well as empowering better conversations about work and health between employers and staff by making it easier to get health advice certified by the most relevant healthcare setting.
From 1 July 2022 nurses, occupational therapists, pharmacists, and physiotherapists will all be able to legally certify fit notes – something that at present only doctors can do. If an employee has been off work with illness for more than seven days, a fit note provides evidence to an employer about the employee’s absence and any relevant advice on how to support for the employee to remain in or return to work.
The change, the most significant since the fit note’s inception in 2010, will support and empower better conversations about work and health between employers and staff by making it easier to get this advice certified by the most relevant healthcare professional. This change will be delivered in general practice and hospital settings.
It will also help reduce pressure on doctors, particularly GPs, while simplifying the process of issuing and receiving a fit note – cutting bureaucracy for employers and the National Health Service.
Fit notes can only be issued following an assessment of a person’s fitness for work, so cannot be issued on request or via over-the-counter services.
This change follows legislation changes in April 2022, which removed the need for fit notes to be signed in ink. This change makes it possible for eligible healthcare professionals to certify fit notes digitally, and also for patients to receive their fit note via digital channels (where GP IT systems support this).
Should you have any absence concerns, contact 121 HR Solutions to discuss further on 0800 9995 121.
Statutory sick pay reform could boost the economy
Research has been conducted into reforming the UK’s 40-year-old statutory sick pay system with a claim that it could save the Exchequer £1.3billion.
Under the current system, workers on statutory sick pay (SSP) receive £99.35 a week. Around two million do not qualify for SSP because their earnings fall below the statutory requirements for SSP (£118 a week). The proposals put forward in a Statutory Sickness Support report suggest a holistic system that supports both employee and employee during periods of ill health.
The proposals look to:
- Widen eligibility, so all workers are protected
- Bring the rules up to date, to accommodate flexible working
- Simplify calculation and administration for employers
- Strengthen the safety net to reduce ‘income shocks’ and alleviate poverty.
The reforms would also boost the average “replacement rate” (the part of the worker’s salary covered by SSP) from 28% to 63%. This would particularly benefit workers on lower salaries, offering them greater security and benefit, should they fall ill.
The report asks that the Government does more to support employers with guidance on how to manage ill health and sickness, including providing targeted guidance, introducing a conditional sick pay rebate for small businesses, and launching a £500 million fund to deliver a “shot in the arm” for SME investment in health at work. It is suggested that the outcome would be reduced sickness absence. According to the estimates used, ill health-related worklessness costs the economy £29billion in foregone tax and NI contributions and the proposed reforms could unlock billions in tax receipts and increased economic output.