A railway technician was unfairly dismissed for failing a drug and alcohol test after having herbal tea was found to have traces of cocaine.

Whilst it was found that the dismissal was unfair due to procedural issues, the employment judge decided that the technician should not receive compensation because he was entirely to blame for his own dismissal!

The technician was subject to a periodic drugs and alcohol test, which found that he tested positive for benzoylecgonine, a metabolite of cocaine routinely looked for in urine to establish use of the class-A drug.  The technician was suspended with immediate effect. However he submitted a statement stating that the most likely cause of his failed test was that he had drunk Inca tea which he had bought for its digestive benefits.

The product did not include a list of ingredients but having researched the product, the technician claimed that he now understood that the tea contained cocaine. The investigation recommended a formal disciplinary hearing based on the finding that the technician “knowingly ingested tea without understanding what it contained”.  The tribunal decision stated that the technician very quickly identified the tea as the source of the cocaine, this is clearly something he could have done prior to drinking the tea, but he chose not to.

The dismissal was therefore within the band of reasonable responses but it was not “just and equitable” to award the claimant any compensation.

Should you require information relating to drug testing, or suspension, contact 121 HR Solutions on enquiries@121hrsolutions.co.uk for guidance.

• Posted on November 29th, 2023

It is getting to that time of year where absence levels start to increase. Are you 100% confident that your sickness and absence policy is effective?

 Managing absence effectively is important and to help with this, it is important to have procedures which establish a fair and consistent process to help identify repeat offenders. A good absence policy should define the process as follows:

• Set out the time period employees have to inform their manager of their incapacity to work. Some employers request this one day before, others say within one hour of the employee’s normal start time – it’s up to you.
• Ask employees who call in sick for their predicted return date.
• Conduct a back to work interview – regardless of how long they’ve been off. Back to work interviews can act as a deterrent, in that employees will be less likely to take time off if they have to formally sit and chat about the reason of absence.

Employers need to be able to respond flexibly to a particular individual’s circumstances and take into account any potential ‘discrimination’ issues connected with the absences.

Managing short-term sickness 

In cases of short term absence, monitor the absences, record the details, hold return to work interviews, and when the absence level becomes unsatisfactory, take disciplinary action. 

Managing long-term sickness 

Long-term sickness absence can also affect the business and knowing when to take action is a fine balancing act. Even if an employee has run out of Statutory Sick Pay (SSP), they continue to accrue employment rights such as the right to paid holidays, so it’s important to take action to identify if and when they are likely to return to work. In such circumstances, before any ultimatum can be set on a return-to-work date or date for dismissal, you will need to have followed a fair procedure. This will include having regular welfare meetings with the employee and being in contact with the employee throughout their absence. 

Should you wish to discuss this subject, contact 121 HR Solutions to discuss further on 0800 9995 121.

• Posted on November 27th, 2023

The government has announced a reform of holiday pay calculation for part-time and irregular hours workers, which will come into effect from January 2024. As well as making it easier to work out holiday pay, it will be permitted to have ‘rolled up’ holiday pay for part-time workers and those who work irregular hours, enabling employers to include an amount for holiday pay on top of the hourly rate in regular pay.

There have been ongoing consultations regarding existing EU employment law and holiday pay and it is now hoped that concerns regarding the calculation and payment of holiday entitlement will be addressed, making it clearer for all irregular hours workers, including part-year workers and agency workers. The new legislation will calculate holiday pay entitlement for such workers as 12.07% of the hours worked in a pay period, in a bid to level the playing field and create greater transparency. This is referred to a “rolled-up holiday pay” and will be permitted only for these irregular hour workers. Effectively, employers pay the 12.07% as a sum in addition to an employee’s normal hourly rate of pay to represent their holiday pay entitlement. Up until now this has been an unlawful practice as a result of concerns that workers may not be incentivised to physically take holiday leave. However, under this new reform, rolled-up holiday pay be permitted for part-time workers, irregular hours workers and some agency workers. 

Should you have any questions on the contractual clauses relating to holiday entitlement, please call one of our qualified CIPD consultants on 0800 9995 121 to discuss further.

• Posted on November 26th, 2023

121 HR Solutions is running a Managing Workplace Investigations workshop in Glasgow on 6^th December.  Click here Managing Workplace Investigations to book your place. 

The goal of any internal investigation is to obtain an unvarnished view of the facts, that is: what happened, when did it happen, who was responsible, who may have been harmed and what further actions may be necessary to prevent the alleged wrongdoing from recurring. It is important to focus on conducting a fair internal investigation, gathering, and assessing evidence through to presenting the findings.

This workshop allows delegates to develop valuable understanding of what the law requires and demonstrates key skills in the investigation processes, such as analysis and report writing. It covers key techniques, procedures and checklists to help ensure that investigators are considering critical factors and that the process is fair and unbiased.

Content:
• The legal background and burden of proof
• The responsibilities of the employer
• The rights of the employee
• The stages of an investigation
• Listening and questioning techniques
• The role of suspension
• Writing the report and presenting findings 

• Posted on November 23rd, 2023

Wednesday’s Autumn Statement delivered a comprehensive set of announcements including changes to National Insurance, an increase in the minimum wage, and adjustments to benefits, as follows:

National Insurance-

There is to be a reduction in employee National Insurance from 12% to 10%, effective from 6^th January 2024.

Minimum Wage-

In April next year, the National Living Wage will see an increase from £10.42 to £11.44 per hour, representing a 9.8% rise. This higher rate will extend to 21 and 22-year-olds for the first time, having previously been applicable only to those over the age of 23.

Benefits and Welfare-

The Government’s changes to the welfare system will require benefits claimants to take part in a mandatory work placement if they haven’t found a job within 18 months.

Whilst lower national insurance and a higher national living wage will help to alleviate some financial pressure, a number of charities are arguing that the Statement does not go far enough to make a significant difference. Similarly, Ben Willmott, Head of Public Policy for the CIPD, said: “The Government must broaden its plans for growth beyond a narrow focus on science and technology towards supporting investment in people and skills across the economy.”  Employers are concerned that the increase in minimum wage will tighten the differential between lower skilled roles and those of first line supervisors – and will make it more difficult to apply a cost of living increase in 2024.

121 HR Solutions is mindful of statutory changes and the effect on clients and will always issue reminders of such changes, in good time. For further information on how 121 HR Solutions can support your business, contact us on 0800 9995 121.

• Posted on November 23rd, 2023

Hybrid and remote working have transformed how we dress for work, with an increasing number of workplaces embracing casual dress in the workplace.  A recent survey has revealed that the average Brit now owns the equivalent of £474 worth of trainers – which is indicative of the way we are spending money on clothing!

Businesses are being forced to reconsider what might be regarded as “acceptable” workwear and increasingly, are having to set out the requirements in a written dress code. It is important that any dress code is gender neutral and that it recognises religious and cultural requirements.  Similarly, for those businesses that wish to re-assert a “business” style dress code, this may require sensitive conversations with employees who are perceived as failing to meet the required dress code. 

A reassessment of dress code policy may well be overdue and if this is something you require to address in your workplace, perhaps this conversation should start with 121 HR Solutions, who can assist in the preparation or introduction of a Dress Code. Contact us on 0800 9995 121.

• Posted on November 22nd, 2023

As part of the support that 121 HR Solutions provides to new clients, we check that they are conducting correct “right to work” checks during the recruitment process.  So, exactly what documentation should be checked to verify that the workforce is eligible to work in the UK?

UK employers have a legal obligation to comply with the prevention of illegal working legislation. This requires employers to conduct basic checks on every UK-based employee to verify they have the necessary permission to perform the work on offer.

Importantly, as part of the recruitment or pre-employment process, the checks must be conducted indiscriminately on all prospective employees, regardless of nationality, race or ethnicity. Singling out certain classes of individual could lead to complaints of unlawful discrimination.

There are ways that an individual can prove their eligibility to work, however the most consistently used method is the Manual Right to Work checks.

‘Manual’ checks refer to meeting the individual face to face and checking a physical copy of their acceptable documentation. Such documents to prove the Right to Work are specified by the Home Office under ‘List A’ and ‘List B.’

A summary of these lists is outlined below:

• List A – British Citizens

For employees who are UK passport holders, the employer must copy and retain the details page of their passport as proof of lawful right to work in the UK.  If a passport is not available, the employer must request, copy and retain their National Insurance number and name (e.g. P45, P60, NI card or letter from a government agency or previous employers) and either a full birth certificate or adoption certificate, or certificate or registration or naturalisation as a British citizen.

• List A – ILR Holders 

Holders of Indefinite Leave to Remain will be in possession of a Biometric Residence Card (BRP) that clearly states this, or with an endorsement in their passport which clearly shows there is no time limit on their stay in the UK. This must be provided in addition to a document showing NI Number and name. 

• List A – European Nationals

EU and Swiss nationals with UK settled or pre-settled status must evidence this through the Home Office’s online checking service.

• List B – Group 1

Employees who have limited time to live and work in the UK are subject to repeat checks which must take place on expiry of their leave. In order to constitute a valid Right to Work check the employer must hold on file a copy of the employee’s immigration status document with photo to show that the employee has the correct entitlement to work. The employee must also provide a copy of a document showing their NI number and name.

• List B – Group 2

Visa holder employees (limited time to live and work in the UK) are also subject to repeat checks which must take place every six months.

Alongside the usual documents, employers must also retain for this group: Positive Verification Note issued by UKVI alone or with: Certificate of Application to a non-EEA family member or EEA national / Switzerland that is less than 6 months old or; Application Registration Card permitting employment in question.

Record keeping is critical for Right to Work compliance. Employers must retain copies of the documents provided and record the date of the check. Copies must be legible and clear, and kept in a form that cannot be edited, such as a pdf scan or a photocopy.

Contact us at enquiries@121hrsolutions.co.uk and we can discuss any queries you may have on this subject.

• Posted on November 19th, 2023

The 1st January 2024 will see the introduction of amendments to the Equality Act 2010. The Equality Act 2010 (Amendment) Regulations 2023 consolidate specific discrimination protections derived from EU caselaw that would have otherwise ceased to exist at the end of this year because of the government’s approach to Brexit.

The key changes are:

• Expanded definition of disability

Currently a person is disabled if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day to day activities. New wording will ensure that when assessing normal day to day activities, a person’s ability to participate fully and effectively in working life on an equal basis with other workers must be considered.

• Protection for breastfeeding mothers

Women are protected from direct sex discrimination if they are treated less favourably because they are breastfeeding. However there will now be the inclusion that if they are treated less favourably (such as failing to provide suitable facilities for her to store and express breast milk) at work because they are breastfeeding, they will be able to bring direct sex discrimination claims against their employers.

• Indirect associative discrimination

This amendment will allow an employee to bring a claim, even if they don’t share the protected characteristic of a colleague, provided they can demonstrate that they suffer the same disadvantage.

For example, men with childcare responsibilities may be able to use similar indirect sex discrimination arguments deployed by women looking for family-friendly working arrangements. In addition, workers who care for family members who are disabled may also be able to argue that requiring them to work full-time or office-based, may amount indirect disability discrimination.

If you would like more information or have any concerns about the subject, contact us at enquiries@121hrsolutions.co.uk.

• Posted on November 19th, 2023

A recent employment tribunal ruled in favour of two employees dismissed for gross misconduct from a popular food outlet. This occurred after they had raised concerns about two managers’ sexual harassment and discriminatory behaviour.

The first claimant stated she was subject to sexual harassment by the store manager, who made inappropriate comments about her appearance, and comments such as “she shouldn’t bend down like that in front of men” when she bent down to pick something up off the floor. She also claimed that she heard the store manager use homophobic slurs against a gay colleague. She was later dismissed for gross misconduct based on accusations of stealing, poor performance, and breaching social media policy. 

The tribunal also heard from a second claimant who received a Snapchat photo from his area manager showing him in the bath watching the store’s CCTV, accompanied by inappropriate comments. Further comments included him being told he had “sexy legs”, and the area manager solicited a threesome from him.  He was also dismissed for gross misconduct, with false accusations of stealing food, leaving the store unattended, and using his personal phone.

Neither claimant was provided with proper employment contracts and the franchise owners were found to have failed to have followed any form of process in respect of the allegations of poor performance.  

The tribunal ruled in favour of both complaints of wrongful dismissal and sexual harassment. Compensation will be decided at a later date.

Businesses cannot afford to be reactive in these situations. There is significant research which confirms that victims of sexual harassment feel violated, intimidated, ashamed, degraded and scared and that many choose to stay silent rather than report it for fear they will be treated negatively as a result.

121 HR Solutions can assist with policy updates if you feel this topic requires a more robust policy. Contact us at enquiries@121hrsolutions.co.uk and we can discuss.

• Posted on November 19th, 2023

The Workplace Relations Commission (WRC), the state agency that enforces the employment rights and equality legislation in Ireland has recently awarded a claimant the equivalent of £3,000. He claimed that shortly after his employment commenced, he started to experience belittling and disparaging comments from other workers and claims he was discriminated against on the grounds of race after colleagues consistently made fun of his English accent, called him names, and even nicknamed him “the Protestant.” He stated that this mocking also included his colleagues placing signs on walls. Despite raising a grievance with his line manager, the matter was not properly addressed, and he was instead told “not to take offence.”

Despite attempts to explain to co-workers that he was an Irish national, and his English accent was because of his upbringing, he stated to the WRC that he felt his national identity was being denied and that another identity was being imposed on him by co-workers.

It was ruled that he had been treated less favourably than his co-workers due to his race as colleagues attempted to “strip him of his identity”. It was also ruled that the employer had failed in their duty to properly address the issue once reported.

He was awarded €3,500 (£3053) in compensation. 

Notwithstanding that this case was heard via the WRC for Ireland, it still highlights that grievances must be taken seriously and addressed appropriately. One of the reasons for having grievance procedures is to resolve issues of concern without the need of a costly employment tribunal.

At 121 HR Solutions we regularly discuss with client the importance that any employees involved in managing disciplinary and grievance matters should be trained in the policies and procedures and know how to implement them confidently.

The next workshop we are hosting on the topic of Managing Disciplinary & Grievance will be in Montrose on 28^th November 2023 and in Glasgow 31^stJanuary 2023. If you would like more information or have any concerns about the subject, contact us at enquiries@121hrsolutions.co.uk and we can discuss.

• Posted on November 16th, 2023