Employers legally required to prevent sexual harassment at work
Employers could be legally required to take “all reasonable steps” to prevent sexual harassment at work under new reforms proposed by the Government.
In response to its consultation on harassment in the workplace, the Government said it would bring forward legislation to create this new “preventative duty” for employers as soon as parliamentary time allowed.
There are also plans to introduce a duty to protect employees from harassment by third parties, such as customers or clients, and new guidance and a statutory code of practice for employers are expected to be published, demonstrating how to tackle sexual harassment in the workplace.
A further measure being considered is the extension of time allowed to bring sexual harassment cases to employment tribunal from three to six months, although a timescale for this has not been confirmed.
The aim of these reforms is to “motivate employers to make improvements to workplace practices and culture” and it is therefore recommended that employers start to consider what changes, if any, require to be made to existing policy and practice.
Unfair dismissal of nursery worker
An employment tribunal outcome has raised the issue of failing to properly investigate after a nursery worker who encouraged children to kick her co-worker and call her names was unfairly dismissed.
The court decided that the nursery, Tender Loving Childcare Centre failed to properly investigate its assumption that the actions of the claimant were part of an ongoing campaign of harassment and bullying following allegations from another member of staff. Whilst the award was reduced by 75% to reflect the likelihood that the employee would have been dismissed had a fair process been followed, it is a case that might not have arisen had the employer managed the issue properly.
The tribunal heard that the employee was a team leader, managing staff in the baby room. Prior to the tribunal she had no formal disciplinaries.
A situation arose when another employee approached nursery manager because she was “upset” about a situation in the baby room with the claimant. This was followed by a second complaint letter which contained a number of allegations, including that the children to “walk around saying ‘smelly Laura’” because the claimant was “annoyed” that one of the children learned to say another employee’s name first. Other allegations related to the claimant allegedly making remarks about this employee’s personal life and relationships, calling her “gay” and a “Hun” as she was a Rangers football team.
Investigatory meetings were held with the baby room staff and all of them corroborated the claims but one of the staff said they assumed it was a “joke”. The claimant, in her interview, denied the allegations.
The claimant was dismissed for misconduct. However, the tribunal said it was “not satisfied” that the nursery carried out a sufficient investigation as the investigation manager had “made it clear” that she relied on the content of the written complaint when deciding that the claimant was at the centre of a campaign of harassment. The nursery also failed to put that all of the allegations to the claimant in interviews, or at the subsequent appeal process.
The claimant was awarded £16,984.30 in compensation, but this was reduced by 75 per cent to £4,246.08 as it was deemed to be likely that she would have been dismissed in any event had a fair process been followed.
This case demonstrates yet again, the need for employers to conduct fair and balanced investigations. In this case, the managers involved were thought to have “taken sides” and it is important that if this is a likely to occur, the employer uses an impartial investigator and disciplining manager.
New online tool to check parental leave entitlement
The Department for Business, Energy & Industrial Strategy (BEIS) has devised a new online tool which is intended to help expectant parents work out how best to manage their leave. The tool will allow parents to check eligibility and pay entitlement with the Shared Parental Leave and Pay scheme.
Parents will be able to check their eligibility for the scheme (at https://www.gov.uk/shared-parental-leave-and-pay) and calculate their pay entitlement (at https://www.gov.uk/plan-shared-parental-leave-pay), as well as downloading all the documents they need to secure leave from their employer.
Shared Parental Leave and Pay allows working parents to share up to 50 weeks of leave and up to 37 weeks of pay in the first year of their child’s life (or within a year of placement if the child is adopted).
Parents are able to agree a pattern of leave that works for them and their employer, and can take leave and pay in up to three blocks (more if their employer agrees), returning to work between periods of leave. If they wish eligible parents can spend up to six months off work together or alternatively stagger their leave and pay so that one of them is always at home with their child in the first year.
The clarity provided by this new government tool could encourage the take-up of SPL – which up until now has had a low uptake; it is thought that this might be due to its complexity.
Mental health and discrimination
Increasingly employers are seeing a focus on mental health and potential discrimination. Discrimination is when an employer or co-worker treats someone differently based on a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation).
Discrimination relating to mental health is more difficult to define because, while mental health itself is not a protected characteristic, disability is. The Equality Act 2010 defines a disabled person as someone with a physical or mental injury. It must be substantial or long term (more than 12 months) and affect the ability to conduct day-to-day activities.
If an employee with mental health problems (which would be regarded as a disability) is treated differently at work because of their condition, this could be discriminatory. Discrimination cases at the employment tribunal have an unlimited award and there is no minimum service requirement for employees to make the claim.
Direct discrimination is where an employee is treated unfairly as a direct result of their protected characteristic so if an employee is not promoted due to having a history of absence due to depression, despite having the right skills and experience, but someone without depression is given the promotion, and may have fewer skills or less experience. The burden of proof for discrimination is on the employer – they have to prove they did not discriminate rather than the employee having to prove that they did.
Indirect discrimination occurs when something which applies to everyone inadvertently disadvantages a person with a protected characteristic. For example, where an employer gives an attendance bonus for staff who have 100% attendance. This might discriminate against an employees whose absence is entirely related to a condition caused by a disability.
The Equality Act 2010 requires employers to make reasonable adjustments if an employee is at a disadvantage compared to other people who do not have a mental health problem. The adjustments — for example, counselling, flexible working hours, a change in duties — should aim to remove any disadvantage suffered but should be realistic in balancing cost, effectiveness and practicality. Adjustments should be made in consultation with the employee and be specific to their needs.
This subject is likely to be something which most employers will have to face and therefore it is important that managers are trained to deal with issues and to be able to provide support.
Absent but in the pub. Controversial unfair dismissal ruling
A recent employment tribunal focused on unfair dismissal following an absent employee being seen out in the pub. However, it was the way that the investigation and disciplinary was handled that resulted in the finding, rather than the actions of the employee.
The employee, Kane, had health conditions including chronic obstructive pulmonary disease, and on the same day that he had phoned in sick, a manager was on his way back to the office when he claimed to see Kane smoking outside a social club.
Following a cursory investigation and a resulting disciplinary, it was decided that if the employee was so unwell not to be able to attend work, he should not be at the pub. The employee was dismissed for a breach of trust and dishonesty.
The disciplinary outcome letter set out the allegation that the employee was “attending the pub on numerous occasions, consuming alcohol and smoking while being signed off on sick with chronic lung disease/chest infection and claiming to be at home in bed”. The company found that this was a “serious and wilful breach of the company’s rules”, regarded it as gross misconduct, and summarily dismissed the employee.
The employee raised a claim and the employment tribunal found many flaws in the investigation and disciplinary procedure. The judge found there was actually ‘no investigation other than to speak to the claimant’ before disciplinary proceedings were commenced. No evidence was presented, no witness accounts were written down and testimonies had errors and inconsistencies.
In addition, there was nothing in the disciplinary procedure specifically prohibiting an employee from going to the pub when they were absent from work which resulted in the judge concluding that going to the pub while off ill did not constitute misconduct as there was no evidence that Kane had been medically advised not to leave his home.
This is undoubtedly a controversial ruling and acts as warning to employers. When citing sick leave policies in disciplinary situations, it is important to ensure that the policy contains comment on what is being alleged. When conducting investigations, make sure that the process is fair and balanced, and do not make assumptions that because someone is not well enough to attend work, they are not well enough to do any activity. If in doubt, seek advice and take time to consider all of the circumstances.
Four day working week trial reports success
A significant trial of a four-day working week in Iceland has been an ‘overwhelming success. 2,500 people, which accounts for 1% of the Icelandic working population, participated in the trial whereby working hours were cut to 35-36 hours with no reduction in pay.
Analysts have now suggested that the resultant rise in productivity and wellbeing means that more countries should be considering introducing a four-day working week.
According to the Icelandic Trade Union Federations, which collectively negotiate wages and conditions for most Icelandic employees, many companies that took part in the trial have negotiated reduced working hours permanently as a result.
The experiment took place in the three years before the Covid pandemic and included a mix of traditional nine-to-five employees and those on non-standard shift patterns. Since the trial, 86% of Iceland’s entire working population now has either reduced hours or flexibility within their contracts to lower hours.
So what are the benefits of a four day working week?
The trial has found a significant increase in worker wellbeing, reduced stress and lower levels of burnout – all of which been reportedly increased in many countries as a result of the pandemic.
Researchers have also found that productivity and work-life balance were significantly improved.
As we move back into more normalised working as the pandemic effects ease, perhaps a four day working week is one of the suggestions to consider, along with hybrid working!
Seven in 10 businesses expected to face difficulties hiring staff, survey finds
British Chamber of Commerce warns that pre-pandemic skill shortages are “once again starting to bite”.
Seven in 10 businesses are expected to face difficulties finding staff, a poll of employers has found, as the UK sees a surge in the number of firms expecting to grow their workforces.
The latest Quarterly Recruitment Outlook survey from the British Chamber of Commerce (BCC) found that in the second quarter of this year, 70 per cent of firms looking to bring on new staff said they were facing recruitment difficulties.
This was up from 63 per cent in the in the first quarter of the year, and 53 per cent in
The construction sector was struggling the most with 82 per cent of firms facing recruitment difficulties. This was closely followed by hotels and catering (76 per cent) and manufacturing (68 per cent).
This coincided with an overall increase in the percentage of employers who said they were intending to recruit, which increased to 52 per cent, up from 40 per cent in the previous quarter.
While the production and manufacturing sector had the highest percentage of firms looking to recruit – 64 per cent, up from 50 per cent the previous quarter – hotel and catering firms saw the largest increase in the proportion of businesses looking to take on staff, jumping to 51 per cent up from just 21 per cent the previous quarter.
As lockdown restrictions begin to lift, labour shortages that existed before the pandemic were once again starting to bite. The encouraging increase in job creation across the manufacturing and services sectors is being held back by recruitment difficulties at all skill levels, jeopardising growth and productivity.
While adopting remote and flexible training practices could help firms attract skills, businesses also needed access to “rapid and agile” training and reskilling opportunities, as well as a flexible and cost effective immigration system.
The survey found firms were missing a mix of skilled and unskilled labour. Among production and manufacturing firms that were recruiting, 65 per cent and 62 per cent respectively reported they were having trouble filling skilled technical roles, and in both these sectors 42 per cent were finding difficulty looking for unskilled labour.
Among retail firms, 43 per cent had issues finding skilled roles, 39 per cent struggled with managerial roles and 35 per cent unskilled roles.
However, in professional services and marketing and media firms, the problem was overwhelmingly management talent (69 and 60 per cent respectively).
UK employees feel silenced and ignored by employers
One in three employees in the UK would rather quit their jobs than voice their concerns at work.
A study conducted by The Workforce Institute has found a worrying gap between employee voice and employer action, as the vast majority (83%) of UK employees feel people at their organisation are not heard fairly or equally.
Nearly half (46%) also said they feel underrepresented voices remain undervalued by employers. If left unresolved, employees who feel unheard by employers can disengage, fuelling turnover and hindering business performance.
An employee’s voice within an organisation is becoming an increasingly important factor in decisions to stay at a company. Research found employees given a fair voice are 27% les likely to quit.
There are a number of reasons for this trend. Firstly, in the age of acceleration, people have become more accustomed to voicing their opinions on online platforms and expect that same freedom at work.
At the same time, there has been a trend of businesses becoming more transparent around policies. Most significantly, the pandemic has seen employers becoming more directly involved with the life experiences of its staff to maintain operations.
With that has come an expectation of an equal voice in the organisation, and those that don’t receive it grow frustrated and restless in their current role.
The Workforce Institute’s research also found nearly two in three (60%) employees feel their voice has been ignored in some way by their manager or employer.
This could have a significant impact on retention, as one in three (34%) said they would rather quit or switch teams than voice their true concerns with management.
Employee engagement is an important part of the overall employee experience, and if employees don’t feel heard, then their engagement and sense of belonging at work suffers.
What can you do about employees offensive social media posts?
Following England’s disappointing Euro 2020 final defeat, social media has seen a torrent of racial abuse aimed at Marcus Rashford, Jadon Sancho and Bukayo Saka. This has been accompanied by a growing movement for those responsible to be identified, reported to the social media platform and police, and where possible, for their employers to be contacted.
Employers have been named in posts calling out for them to take action. So, in employment terms, what should employers do if they become aware of offensive posts made by staff on their personal social media?
Limiting reputational risk following such offensive posts will require swift action and, alongside considerations of legal fairness, the approach you take should be consistent both internally and externally, involving coordination in your communications.
If your corporate message is a zero-tolerance approach, you should ensure your internal processes are ready to address such a situation and that these are consistent with any press release made.
On the face of it there is a potentially fair reason to dismiss, but don’t be hasty. Remember your obligations under the ACAS Code and your internal disciplinary procedure. Carry out a fair process to limit an argument of procedural unfairness (and a potential uplift in compensation for failing to follow the ACAS Code) if the employee brings an unfair dismissal claim.
Immediate suspension pending an investigation is likely to be an appropriate response in PR terms, but suspension should be carried out fairly.
In HR terms, suspension should not be a disciplinary sanction or automatic approach and it should be applied only where appropriate to the circumstances i.e. where there is a serious misconduct and there is a risk to working relationships, a potential threat to the business, employees or property, or of evidence tampering.
Check you are entitled, contractually, to suspend and follow a fair process.
Ascertain the facts and ensure that the circumstances, including any representations by the employee, are adequately investigated.
In a 2015 case the employee’s dismissal by LHR Airports was held to be unfair because, although it had a reasonably held belief that the employee had posted something highly offensive, it had failed to reach this conclusion after a “reasonable enquiry”.
The employee had claimed that his account had been hacked and this evidence was not considered.
As well as misconduct, such posts may amount to “some other substantial reason” justifying dismissal in the circumstances, given reputational damage and notoriety. Even in cases of gross misconduct, consider if dismissal is reasonable in the circumstances and be consistent.
The dismissal of an Apple Retail employee for Facebook posts was found to be fair because Apple had made clear in its policies and training materials that protecting its image was a “core value” and had drawn attention to the fact that making derogatory comments in social media was likely to constitute gross misconduct.
Social media policies should be clear on your corporate image, values and expectations, the impact of social media posts from personal and business accounts which might damage the reputation of the business and the implications of a breach. Employees should understand that they have no control over how even private posts might be screenshot and shared.
Provide relevant and regular equality training to staff. The Employment Appeal Tribunal recently determined it was not enough to treat such training as a “tick box” exercise and that training had gone “stale” after a two-year period. Maintain records of any training attended and what it covered.
Worker who discovered colleagues’ racist WhatsApp chat awarded £25,000 for unlawful harassment
Judge rules group messages including members of senior management created ‘hostile, degrading and humiliating’ work environment.
An operations clerk who discovered a WhatsApp group dedicated to racially abusing her and another colleague has been awarded almost £25,000 for unlawful harassment on the grounds of sex, race and religious belief.
Following a hearing in late 2020, the tribunal ruled that Mrs M Abdi’s employer, distribution services provider Deltec’s handling of the situation was “inadequate” because after discovering the offensive WhatsApp group, she had “continued interaction” with those involved.
A further claim for equal pay was dismissed.
Abdi was employed as an evening operations clerk by Deltec in Hounslow, Middlesex from November 2017 until her resignation in September 2018. The tribunal said that Abdi is of black Somali origin, having moved to the UK as a child, and she wears a hijab.
She told the tribunal that the company’s export department was a “chaotic” working environment with a “juvenile atmosphere” and a high staff turnover. On 10 August 2018, there was a discussion in the office about white privilege between Abdi and some of her colleagues which developed into a “heated” argument.
In what Abdi described as a “vile discussion”, two colleagues told her that “the majority of crimes in England are made by black people”, and she countered their claims. The colleagues then attempted to find evidence on the internet to substantiate their argument, and despite not finding any, they continued to push their opinion.
Shortly after the argument, Abdi used a colleague’s login details, which the tribunal confirmed was in the proper course of her duties, to access a computer. She discovered a WhatApp group chat which included her line manager, Simon Hocking, and the colleagues involved in the earlier argument.
The tribunal said the messages within the chat, which were sent around the time of the argument, were “highly offensive and threatening” towards Abdi, referring to her as a terrorist, a postbox and suggesting she should “suffer”.
Abdi told the tribunal that she complained to Hocking about the discussion but alleged he did not take the matter seriously, telling her it was a “he said, she said” scenario. She also recorded her discussions with Hocking after discovering him on the WhatsApp group, and the transcripts showed that he said to Abdi: “I hate racism [but] all that’s going to happen is it’s going to be you and [another colleague] versus them three, and it’s going to go around in circles”. Abdi did not take her complaints to senior management as she was already embroiled in a disagreement about pay and a stolen mobile phone, but she did screenshot the WhatsApp group.
On 14 August, she logged in to the computer again and found the WhatsApp group name had been changed to “ALHAMDULLAH” and the icon was changed to a picture of a black hijab. There were also more racist messages about Abdi and another colleague which she took a screenshot of.
The tribunal said that the discussion violated Abdi’s dignity and created an “intimidating, hostile, degrading, humiliating and offensive environment”.
Abdi sent the screenshots to a senior member of staff who sent them on to chief executive, Mr Cunningham, who described the chat as having “extremely inappropriate and foul language, some derogatory and deeply unpleasant comments made about [Abdi and another colleague].” He also said the participants thought they were “being amusing” but actually being “offensive”.
Cunningham moved Abdi and the other colleague out of the export office and away from those in the chat while he investigated, but the tribunal found this to be “inadequate”. Cunningham told the tribunal that Abdi was glad she was moved out of the “playground”, but Abdi told the tribunal she thought it was “weird” that she was dealing with the chief executive and not HR, and that she lied to Cunningham because she “didn’t want to disagree with the CEO”.
As a result of the investigation, Hocking – who had more than 10 years of service – was issued a final written warning, but two other members who were still in their probationary period were dismissed. Cunningham apologised to Abdi and told her that the business had taken appropriate action.
However, Abdi told the tribunal that despite her office move, Hocking and the remaining members of the WhatsApp group continued to come into her office and stare at her “with smirking faces”. Abdi resigned from her position with immediate effect on 1 September 2018.
At the remedy hearing, Abdi was awarded £24,945.72 for injury to feeling and financial losses.
Employment judge Skehan said that Abdi was the “sole black, hijab-wearing member of staff within the group and the unlawful harassment was felt by [Abdi], whether intentional or not, as an expression of hate for her religion, ethnic origin and gender”, adding that the discussion included her immediate line manager which was “likely to be upsetting”.