BEL

Time to be creative?

The figures announced today show that the economy has dropped by a record level of just over 20% in April. That comes on top of the announcements by Heathrow airport and Centrica that they are cutting thousands of jobs.

The timings of the announcements of job losses is no real surprise. With the Job Retention Scheme payments starting to taper down in August and employers being required to make contributions to pensions and National insurance payments, many businesses will be looking at how they can afford to keep employees on the payroll with little or no income. Although for small businesses NI and payment pensions will be relatively small, for an employer the size of Heathrow Airport, they will amount to tens of thousands of pounds. Larger employers have rules applying to them in terms of timescales for redundancy consultations when they are making more redundancies. If its 20 to 99 employees, they must start the consultation process at least 30 days before the redundancy date and if its more than 100, then its 45 days. If it’s 45 days from now that takes us to 27th July – just before the Job Retention Scheme payments change and employers have to contribute.

Employers in the SME market will be asking themselves the same questions as larger employers – how can I keep staff on and pay the contributions I will be required to with no income? This will be particularly difficult in the pub, café and restaurant trade and the small independent retailers. How can they have enough people in their premises spending money to make it commercially viable to be open when social distancing will severely restrict the number of people allowed in.

SME employers will undoubtedly be thinking about redundancy. This is often a much more painful process in a small business where there is much more direct contact between employer and employee, and often long-established relationships.

My advice is – try to make redundancy your very last option. This is the time to be creative in your working relationships with your employees. If you have a small core of long serving, trusted employees you might find that if you suggest some temporary flexible changes including everyone taking a cut in hours, even a cut in pay, or periods of unpaid leave. Although you can’t impose this sort of thing (unless you have very specific clauses in your contract of employment, and even then they could be subject to challenge) you might find that with consultation and agreement most staff would prefer some temporary reduction rather than termination of their employment. As long as your employees agree to the change, you can make it. You should make a written record of what has been agreed, together with built in reviews and, get a signed acceptance by the employee to make sure it is legally binding on all.

Tough times are undoubtedly ahead for all of us but if you are able to be creative and flexible with your staff, and they come on board with you, you may be able to preserve your skilled, trusted workforce to be ready to take advantage when things start to improve.

Can an employee refuse to return to work?

As the situation with coronavirus continues to change we are starting to see some businesses trying to get back to work. The most common question I am being asked at the moment, by employers and employees is whether an employee can refuse to return to work, and if they do, what are the consequences.

Although employment law is the same in Scotland and England, because the Scottish Government advice is now different from Westminster, employers north and south will have to take slightly different approaches. The advice in Scotland remains that if you can work from home, you should. There is, however, no rule of law on this but there is strong guidance on the questions you as an employer should be asking yourself before requiring staff to return. There are certain businesses that are required to be closed by law and in those businesses you couldn’t require an employee to return to work but any other business can look at re-starting as long as they can follow the guidance on protective measures. For example, tradespeople working in client homes can do so provided they can follow the rules on social distance etc.

The basic position is that an employer can require employees to return and if the employee refuses, that would be a breach of contract and could lead to disciplinary proceedings including dismissal. An employee would have a good claim for unfair dismissal in such a case if they could show that the employer was blatantly not following government guidance or did not have sufficient procedures in place to minimise the risk of infection. I don’t think a tribunal would require an absolute guarantee of non-infection as that would be too hard to enforce and indeed an employee could catch the virus while shopping and therefore it would be unreasonable to expect a 100% guarantee. It is likely that the test will be whether an employer took all reasonable steps within the terms of Government guidance.

If you have an employee who is refusing to return despite you having followed the proper guidance and preparation then you are in a difficult situation. The furlough scheme is still operational and the current information is that it will remain in its current form until the end of July. I suspect it will continue in some form after that but most likely at a reduced rate. My only slight worry about that is that employers need to keep records for five years and I would be concerned that where the only reason for keeping a worker on furlough is because they are refusing to return, HMRC might well say after the fact that this is not an acceptable reason. The qualifying requirement that the employee cannot do their work because of the virus might provide enough leeway but if most or all other employees are back to work, that might not be enough to satisfy HMRC that your claim was justified. Where an employee is refusing for justifiable reasons such as family members shielding or having underlying conditions themselves, it will be far more difficult for employers to insist on return to work and furlough would be justified. If, however, an employee is going about their life doing the shopping etc, and the workplace is properly set up in terms of Government guidance, then it will be far more difficult for them to justify refusal. In such cases an employer could consider asking the employee to use up leave or even agree to an unpaid leave of absence.

There is good advice on the government website covering sector specific employers but generally employers should carry out a thorough assessment of whether an employee has to come back to work; if they do can they work from home; if not, can the employer put in proper measures for safety such as PPE and social distancing; is the employee shielding or particularly vulnerable; and pay attention to any changes in Government Guidance. The onus will undoubtedly remain on employers to show that they have taken all reasonable steps in line with the law and Government guidance so it is important that employers plan properly for a return to business. Which is something we are all looking forward to eventually.

What’s your stance on romance?

Despite living in a world of online dating, the old-fashioned office romance is alive and well in the UK. In fact, research reveals that as many as 4 in 10 workers end up in long term relationships with one of their colleagues.

It seems that long hours spent together at the office, common interests and a shared work ethic are key drivers for workplace romance. But what happens when people find their relationship becoming more than just professional? Should romance and work ever mix?

A survey reported that three quarters of respondents have considered embarking on a romance in the office and more than half had had a relationship with at least one colleague. Perhaps it’s even more surprising then that 84 per cent of the same people believed office romances have a negative impact on productivity.

There are certainly risks. If relationships turn sour this can lead to potentially serious situations, including sexual harassment or even unfair dismissal claims. But contractual clauses forbidding office relationships are unlikely to work and they could also create the awkward possibility that highly valued employees have to be disciplined for falling in love.

Very interestingly, rules are also evolving because of the #MeToo movement. For example, at Facebook and Google, you can only ask a co-worker out once and if the person says no (or even if it’s not a clear yes), you’re not allowed to ask again.

What’s important is encouraging employees to keep work and personal life separate, and to stay professional both when things are going well and if they break up.

As well as sharing your company policy on the issue with all of your employees, it is also vital for employers to have robust bullying and harassment procedures in place should things go wrong – and to act upon any complaints swiftly and appropriately.

THE SME EMPLOYER’S GUIDE TO MANAGING AN OFFICE ROMANCE
As obvious as it might seem, the more people that you employ, the more likely the chance of workplace romances happening. But can your business handle the unpredictable impact that personal relationships can have on working relationships?

If your employees do develop romantic relationships with each other, it’s important that you invest time and effort in creating a consistent stance on the matter.

Is it a clear-cut ‘no’, a middle of the road ‘declare it to your manager’ or ‘don’t ask don’t tell’? Here are some guidelines that will help you to create a company policy on workplace relationships that makes your position to employees clear and help you to navigate clear of any romantic turbulence.

Do your employees know the risks?
There’s always the chance that any relationship won’t work out, but there is also the potential for a conflict of interest.

Of course, many people form close friendships with colleagues but this can complicate decision making. This can become more significant if your employees start dating. Will this mean they put the company’s or individual’s best interests first? Additionally, how can anyone be sure that employees aren’t exploiting their position or the vulnerability of a co-worker? There are also reputational risks. For example, colleagues may think a manager in a relationship with a junior is giving them preferential treatment and this can impact on how the rest of the team sees the manager’s decision making capabilities and professionalism. It can also affect the junior employee, whose success may be constantly overshadowed by doubt from others.

Do they know your stance on office relationships?
If your employees are aware of these risks but still want to pursue a relationship at work, it’s important that they know your company stance on the issue. Many companies not only frown upon but categorically prohibit employees from dating co-workers, customers or suppliers. Some require disclosure from the outset, whilst some turn a blind eye to it.

As an employer, you should make sure that you explore how you feel about your team members dating and think through how all of the scenarios may affect your business.

Once you are sure about your stance, put together an official company policy and make sure that every employee is aware of the terms. Build an open and transparent communications channel so if any of your employees have already violated a policy, they feel comfortable confessing to it and moving on, rather than covering it up and sneaking around.

Nowadays, more companies are removing regulations to dating colleagues because these rules are hard to enforce and seem excessively controlling, especially if businesses expect employees to work 40 hour weeks.

Boss/employee relationships to be avoided

It is universally accepted that it’s a bad idea to get involved with anybody who is in your chain of command, either up or down, on account of the ethical dilemma of either party exploiting the dynamics of power.

This is where conflicts of interest are most obvious, for example, it’s hard to be objective when giving someone you’re dating a performance review. A romance between an employee and a manager can affect team morale and damage confidence. While boss/employee romances do happen, and sometimes those relationships do work out, there is undoubtedly a minefield to negotiate.

Do they feel tempted to hide it?
While your employees’ personal relationships are their business, it’s important to encourage them to be open about any workplace relationship, at least with you. This might be difficult to follow through, especially if it’s early days and the employees in question aren’t sure about where the relationship will go.

Letting people know reduces the awkwardness and increases the chance that they’ll receive the news favourably. This could mitigate a lot of the negatives of the situation, so stress this point with your employees early on.

Give your employees the freedom to come to you, while they certainly should not feel like they have to announce every single romantic involvement or fling. They should feel comfortable in saying something like “We went on a few dates, but I’m sure you can understand that I don’t want to get into more detail about our personal lives,” this could make a huge difference. Also, putting a relationship on record can protect your employees and your team’s morale if the relationship goes sour.

Set boundaries

Whilst being open about your relationship is a positive thing in many cases, stress that your employees don’t have to get into details or be subjected to public displays of affection at work. Research on flirting at work reveals that team members who witness open displays of romance in a work setting may feel uncomfortable and de-motivated.

It is important that your employees have an open conversation that defines the relationship, outlines boundaries and know how to manage and mitigate risks.

It’s also important to remember that harassment under the Equality Act can occur if someone else is upset by behaviour they witness, even if that behaviour is not directed at them.

In the event of a break-up
Of course, not every romance will work out and if your dating employees decide to break up, it’s best that they’re prepared for it. If they’ve been telling people about the relationship, they may need to tell people when it’s over in the most professional way as possible.

SETTING YOUR COMPANY POLICY
With these guidelines in mind, there are some key do’s and don’ts on office relationships that your employees should know about.

Do:
• Know the many risks of getting involved with someone at work.
• Familiarise yourself with your company’s policy and the reasoning behind it.
• Talk through what you’ll do if the relationship doesn’t work out.

Don’t:
• Pursue a co-worker if you’re not serious about a relationship.
• Date someone who you have a reporting relationship with.
• Try to hide the relationship from your manager or colleagues – after a certain point, it will only erode trust.

These guidelines and do’s and don’ts provide some of the key rationale for setting out your own company policy on workplace relationships. Once confirmed, you should then make sure that this policy is communicated to all of your employees so that everyone is fully aware of your company’s stance.

As with all workplace policy, Borders Employment Law can help you to develop your own company policy on managing romantic relationships in your organisation and if problems do arise we can also provide you with the right advice.

2020 Vision

As we go into peak holiday season, next year might seem like a long way off, but there are some key employment law changes which will come into force in April 2020 that businesses should be planning for now.

Three key reforms relating to holiday pay, off payroll labour and written particulars are outlined below along with some really good advice on what businesses should be doing.

New reference period rules for calculating holiday pay
The reference period used to calculate holiday pay for workers with variable pay is changing on 6th April 2020.

Ever since the European Court of Justice ruled that holiday pay must take into account ‘normal remuneration’ such as contractual or regular patterns of overtime, pay allowances and certain commission payments, the 12 week reference period has been difficult. Fluctuations in pay can lead to higher holiday pay if leave is taken immediately following peaks and lower holiday pay if it is taken following troughs.

Currently, it is pay that a worker receives during the 12 weeks worked prior to taking a holiday. But as of 6th April 2020, the reference period will be changed to 52 weeks, or the number of weeks of employment if a worker has been employed for less than 52 weeks.

You need to…….CONSIDER WHEN AND HOW YOU MAKE THE CHANGE
With regards to holiday pay, many firms begin their year on 1st January. If that is the case in your business, you need to decide whether to change the way you calculate holiday pay on 6th April, or at the start of your holiday year.

Of course, Christmas can bring high levels of overtime in some sectors and this could have repercussions on holiday pay if you decide to move to the new system in January. It could also mean that people who work the same hours receive different holiday pay, simply because of the dates that they take leave. If your financial year ends after 6th April, the value of accrued but untaken holiday will increase, meaning you may wish to limit how much holiday can be carried forward.

You need to…….ADJUST YOUR HR SYSTEMS
In some situations, the 52 week reference period will need to be altered. However, the good news is that employers do not have to look back any more than 104 weeks prior to the holiday.

You should review your variable pay policy, if you have not started to include variable pay in your holiday pay, now is probably a good time to do so. If you decide to tackle this, it is important to assess what pay components you will cover and whether this could trigger claims for backdated holiday pay.

Changes to the tax treatment of off-payroll labour
From 6th April 2020, changes to tax legislation regulating off-payroll working (IR35) also come into effect.

These new rules will require larger private sector businesses to deduct income tax and National Insurance contributions via payroll from fees for services paid to a personal service company (PSC). This is where the individual performing the services would, but for the PSC, ordinarily be regarded as an employee of the ‘client company’ for tax purposes.

The treatment of individuals who are directly engaged by the client company, for example ‘John Smith’ rather than ‘John Smith Limited’, remains the same. The correct tax treatment of the fees paid to these workers will depend on whether they are an employee of the client company for tax purposes, or if they genuinely are self-employed.

At present, the tax liability rests with the PSC. The change will be accompanied by obligations on the client company to determine the correct position for each engagement and notify the other parties involved. It pays to be prepared for this reform; when similar changes were introduced in the public sector two years ago, many organisations were caught out.

You need to…… AUDIT YOUR OFF-PAYROLL LABOUR
It is a good idea to start doing this as soon as possible because the audit process could take some time. It is likely you will need to make individual decisions and have different communications with each PSC.

The audit will be a factual investigation, looking at what each individual does in practice, how they do it, what contracts they’re engaged under and how they are paid and so forth. This may also be a good time to audit any off-payroll labour that is not provided through a PSC.

You need to…… CONSIDER THE KNOCK-ON EFFECTS
The audit is likely to have knock on consequences that may require legal advice.
As well as determining employment status, you may need legal advice to amend or draft contractual documentation, to advise on the effects on pension liability, and to consider how this change works with rules around immigration, the apprenticeship levy and with gender pay gap reporting. In addition, if liabilities are identified or a revised model of working is required, your accountant may be needed to quantify the position.

Written particulars becoming a ‘day one right’ for workers and employees
The requirement to give written particulars will be altered in the following 3 key ways:

  1. It will become a ‘day one right’ for those employed after 6th April 2020.
  2. It will cover workers as well as employees.
  3. It will need to cover additional topics, such as probationary periods, any variation in working hours, and ‘any other benefit provided by the employer’.

You need to……. REVIEW YOUR CONTRACTS
Begin by revisiting all contracts used to engage employees and workers in readiness for new starters arriving after 6th April 2020. Most of the new areas are straightforward but some thought will need to be given to areas that are more complex.

You need to……. CONSIDER THE IMPACT ON FLEXIBLE WORKING
If your workforce includes flexible working patterns, such as shift workers or zero hours workers, you will need to consider how your approach might vary and you should build this into your terms.

You need to……. ASSESS YOUR BENEFITS
To cater for the ‘any other benefit’ requirement, you will need to decide what types of benefits should be covered and their contractual status.

Summary

At first sight, these legal reforms may seem fairly minor, however they do mean that you will need to review key processes and possibly make important changes that will have legal and financial consequences.

As ever with employment law issues, preparation is key. Organisations that start work on these changes now will be in a good position going into 2020. We hope that this article is useful and that it provides clear advice on what you need to do now.

Of course, Borders Employment Law can provide all the help and assistance that you need to make sure you are fully prepared and compliant with the changes.

An employer’s guide to jury service

Jury service is a public duty, but what are the implications for employers?

Groups of 15 ordinary women and men are selected at random to uphold justice in their local community. Jury service is a public duty that they are obliged to perform and unless someone is disqualified, has the right to be excused or has a valid reason for discretionary excusal, then they must serve. All jurors are selected at random from the electoral register and everyone from the age of 18 to 70 may be selected even if they are not eligible to serve on a Jury.

The chance of being called for jury service in Scotland, as in receiving a citation for jury service, is roughly 95% across the 53 years of typical eligibility. Although many people will receive a letter asking them to serve on a jury, far fewer will actually be selected to sit on the jurors’ benches.

About 30 men and women will be invited to court and 15 will be selected to be part of a jury.
In fact, the chance of actually serving on a Scottish jury is about 30% and the probability of being asked to be part of a jury more than once is about 40%.

Some people never get called whilst others get called more than once. But what are the implications for employers if an employee is called?

Key points
• Employers must allow an employee time off for jury service, although employers can ask for a delay if allowing you time off will harm the business, but can only delay once in a 12 month period.
• Jury service in most cases is an average of ten working days but may be longer or shorter depending on the case.
• There is no legal obligation for an employer to pay an employee while on jury service as the court will pay certain costs.
• Anyone on the electoral register aged between 18-70 may be selected, subject to certain exceptions outlined below.

Employees should tell their employer as soon as possible that they have been summoned, when they will need time off and if possible how much. If they are not needed at court they should return to work unless something different has been agreed beforehand. Courts can pay for loss of earnings, travel costs and a subsistence rate during jury service. This is subject to certain limits so an employee won’t necessarily recover all their losses.

The law gives employees the right to time off and not to be dismissed or treated be subjected to detrimental treatment because they serve on a jury. They also have the right not to be selected for redundancy, where the reason is connected to their jury service. Employees can also bring a claim for unfair dismissal in relation to jury service by making a complaint to an employment tribunal if they are dismissed or suffer detriment for taking time off for jury service.

As an employer, here are some of the key questions you might have.

Who is not eligible for jury service?
Any UK resident aged between 18 and 70 years of age, who is registered on the electoral roll, could be called for jury service. All jurors are selected at random by computer from the electoral register.

Those who are not eligible for jury service include:
• Anyone currently detained, or who is liable to being detained, under the Mental Health Act 1983
• Those who lack the mental capacity to be a juror
• Individuals who are currently on bail, or an active defendant in criminal proceedings
• Anyone who has been in prison, or charged with a crime in the last ten years

There are different rules in Scotland and England regarding exempt occupations. For example a solicitor or judge I Scotland is exempt, whereas in England they are not. Scottish Courts Service produce a very helpful guide on eligibility on their website at www.scotcourts.gov.uk

Due to the random selection criteria, some people may be called to serve as juror multiple times during their life, whilst others will not be called at all.

How long does jury service usually last for?
An average juror will serve on a criminal case for between three to 10 days. However, more serious crimes, such as murder or complex fraud cases, may take much longer.

If a judge has been briefed that a case is likely to last much longer than stated, he or she will raise this with all potential jurors from the offset and allow them the opportunity to apply to be excused from serving, or for their service to be deferred to a later date.

Can someone apply for exemption or ask to be deferred?
Anyone can apply for exemption from their jury service or for it to be deferred. You can commonly only delay jury service once, and you must provide alternative dates for your availability within the next 12 months.

The main grounds for deferral include:
• Having a pre-booked holiday
• Needing to attended hospital for a scheduled operation
• You need to attend an exam, or are a teacher and it is the exam period
• You are seriously unwell
• You are pregnant and due to give birth

Rarely, an individual can be completely excused from jury service (with the option of being called again at some point in the future). This normally only applies to those who have served as a juror, or has attended to serve, within the last two years. It is a criminal offence to refuse your jury service and non-attendance can be followed with a fine of up to £1,000.

When should employers be notified of a jury summons?
An individual normally receives a summons for jury service at least five weeks prior to the date of the trial commencing, which they must legally respond to within seven working days.

As an employer, you should make clear that any employee needing to attend jury service must notify you of their obligations, the date that the trial starts, and the estimated duration as soon as possible.

Do I legally need to give my employee time off?
Completing jury service is a legal requirement, and you must not subject any of your employees to detrimental treatment for having to do so. You must also allow them to be away from your business for the full amount of time stipulated by the court. Employees also retain the right not to be selected for redundancy, if the reason for selection is in any way connected to their jury service.

However, if you really feel that you cannot spare an employee due to the demands of business or a lack of qualified personnel, you could ask them to apply to defer their jury service. If you choose to ask this, you will also be required to write a letter stating how their absence could seriously harm your business. You should note that they can only delay jury service once in any 12 month period, and that you must also supply dates of preferable dates when the employee will be available.

What happens to salary payment?
Legally, you are not required to pay an employee whilst they serve on a jury. However, many companies do so as a gesture of goodwill. As stated previously, the likelihood of being called to jury service during your working life could be as little as 40%, so many company policies reflect this and offer full pay on the assumption that very few employees are likely to be absent for this reason.

If you decide that you really cannot pay employees whilst on jury service, they can instead apply to claim for ‘loss of earnings’ from the court in question. A certificate demonstrating this must be filled out and handed in to the court by the employee.

What expenses can be claimed?
Anyone serving on a jury, regardless of whether they are being paid by their employer or not, can claim for expenses from the court. The areas an individual can usually claim for are travel and parking, food and drink, and a contribution towards ‘loss of earnings’ and/or other expenses.

Rates of pay for loss of earnings, and other expenses aside from travel and food and drink, depend on the length of time and the hours required for the trial itself.

What are the Tax and National Insurance implications?
This will depend entirely on your remuneration policy for employees conducting jury service.

• If you choose not to pay them at all during a period of jury service, nothing will need to be added to their payroll record or P11 form.
• If you pay an employee in full as normal, you also will not need to make any changes. You will continue to pay National Insurance and tax in the normal manner.
• If you contribute to, or top up a ‘loss of earnings allowance,’ you will need to calculate PAYE tax and National Insurance contributions, based on the amount you choose to provide.

If you decide not to pay your employee, and they then apply for a loss of earnings allowance, the court will ask you as their employer to state how much money will miss out on due to undertaking jury service. You will not have to take the allowance itself into account when calculating PAYE and NICs, as it effectively counts as compensation, and not remuneration for a job.

You may then decide to ‘top up’ your employee’s allowance, so as to ensure they take home their full salary for their period serving on a jury. This would then require you to calculate PAYE and NICs on the amount that you decide to contribute.

OUR ADVICE
It is unlikely that you will have to regularly deal with managing staff who are undertaking jury service, but it is still wise to have a clear policy in place when it does arise.

Here is our advice for successfully dealing with staff on jury service.
• Ensure that you fully understand all of the legal rules and requirements surrounding UK jury service.
• You must make sure that you act fairly and appropriately and do not penalise any employee who has been called to serve unfairly.
• Communicate your business policy effectively to staff. Most employee’s will understand that their jury service could have an unwanted negative effect on a business, but you should make clear that employees know they are fully protected against both detrimental treatment and job loss whilst they are away from the business.
• Plan for business absences due to jury service. Whilst it is likely to be an infrequent occurrence, having a rough plan in place to deal with jury service absences makes both good business and financial sense. Stay informed about temp agencies that might be able to help should you need extra staff to cover.
• Implement a clear jury service policy. Make sure that you have considered the key areas that could be affected by an employee on jury service, these could include providing cover arrangements, rates of pay (if any), time periods of informing line managers and so on.
• Recognise that you could be summoned yourself! So set a good positive example to your employees and plan for your own jury service period (even if it never occurs).

Q&A

Your latest employment law questions answered.

Q. As an employer, can I automatically deduct money from my employee’s wages if I have overpaid them?

A. Yes, if it is overpaid wages or expenses. There are certain deductions allowed by statute but these are limited to overpaid wages, expenses and holiday pay, or deductions as a result of strike action. For anything else you need a clause in the contract of employment. The best option is to have the appropriate clause included in your contract of employment.

Q. My employee returning from maternity leave has asked to work part time when she was full time before. Do I have to agree to that?

A. Not necessarily. Every employee with at least 26 weeks continuous service can put in a flexible working request to change hours, and that will include someone returning from maternity leave. As an employer you must consider that reasonably and accommodate if you can do so without a significant impact on your business. You can refuse as long as you have a good financial, technical or organisational reason to do so. The best option is to have a clear policy that treats all staff the same to minimise the risk of your decision being considered discriminatory. See our latest blog for much more information.

Q. An employee has gone off sick in the middle of a disciplinary process, do I have to wait for them to return from sick leave before carrying on?

A. No, as long as you take reasonable steps to allow them an opportunity to be involved. This could be by written submissions or attendance at an alternative place more convenient for them depending on the nature of the illness. You would always be advised to consult with the employee’s doctor. You can still dismiss someone who is off sick, but any tribunal looking at it as a claim would want to see a fair and robust process that have afforded the employee as much opportunity as reasonably possible to be involved.

Pregnancy and maternity discrimination

This article looks at the issue of pregnancy and maternity discrimination in the workplace and if it does happen, how it should be dealt with.

The Equality Act 2010 protects employees from discrimination and victimisation because of pregnancy and maternity, one of nine features known in law as ‘protected characteristics’ that are covered by the Act. It is also important to say that while employers and employees can be liable for their own acts of discrimination, employers can also be liable for their employees’ acts.

The main issues that mothers-to-be and new mothers can face difficulties include:
• Being dismissed or forced out of their jobs because of their pregnancy and/or maternity.
• Some managers believing that mothers-to-be will only be able to cope with a lower level of work or less work, because of their pregnancy.
• Mothers having to settle for low-paid, part-time work on returning to employment because some employers believe they will not be as committed because they have a family.

As an employer it is important to make sure that your workplace is ‘inclusive’, this means that employees feel that they belong and are not disadvantaged or undervalued because they are pregnant or on maternity leave.

The Equality Act protects employees from certain types of discrimination relating to the protected characteristic of pregnancy and maternity. The characteristic covers a woman from when she becomes pregnant until her maternity leave ends or she returns to work or opts to leave employment. During that time, which is known as the ‘protected period’, she is protected against discrimination because of her pregnancy or of any illness related to her pregnancy or absence because of that illness she is seeking to take. It is important to note that protection under the Act will only begin from the point that you know an employee is pregnant, so it is very important to have policies in place that you action as soon as an employee tells you she is pregnant.

It is important to understand that once the protected period ends, it can still be unlawful to treat her unfairly because of her pregnancy, maternity or breastfeeding. This might be because the unfair treatment stems from a decision taken during the protected period or, she might claim that it is sex discrimination.

Both the employer and employees should be very careful regarding questions related to an individual’s pregnancy or maternity as these might be or become discriminatory, particularly if they are intrusive or handled insensitively.

Key points in the workplace
Before we provide advice on what all employers should be doing to reduce the chance of pregnancy and maternity in the workplace and how to deal with it if it does occur, here are just some of the key points relating to the issue that you should be aware of.

Risk assessment
An employer’s general workplace health and safety assessment must specifically consider risks including working conditions, heavy lifting or carrying, travel, standing or sitting for a long period without adequate breaks, long working hours and exposure to toxic substances.
Once an employee has told her employer in writing that she is pregnant, a new mother or breastfeeding, she should have regular health and safety discussions. Concerns and any risks can then be reviewed and addressed, taking into account possible risks that may occur at different stages of pregnancy. Where you have any doubts, it might also be sensible, with the co-operation of the employee, to get input from her doctor.

Should a job applicant tell the employer she is pregnant?

A job applicant does not have to tell the employer during the recruitment process that she is pregnant. Where she volunteers information about her pregnancy or maternity, or is obviously pregnant, or appears to be pregnant, interviewers and recruitment decision makers should not be influenced by that information or impression.

If she gets the job, she must tell the employer of her pregnancy if there are any health and safety reasons, and to take time off for antenatal appointments in work time. Generally, the rule is that an employee must tell her employer at the latest by the 15th week before the expected week of childbirth (when she is about six months’ pregnant) to give notice of her intention to take maternity leave and pay. However, in circumstances where an applicant joins a new employer after the 15th week before childbirth, the law says she must tell the employer as soon as is ‘reasonably practicable’. She should confirm her pregnancy in writing.

If an individual does not get the job, and can establish that this was because she was pregnant, then that is discrimination and you could be liable for a claim even although you had never actually employed the individual.

Training

Withholding training from an employee because of her pregnancy and maternity leave is likely to be discriminatory. Generally, it would be unlawful for a woman to miss out on training because she becomes pregnant, is about to take maternity leave or is on maternity leave or is absent from work because of illness related to her pregnancy or maternity.

However, both employer and employee need to be reasonable about when training takes place, and they can discuss the best timing for training. As with general working conditions you should also carry out a risk assessment to ensure that it is safe for the pregnant employee to undergo the training.

Managing absence during pregnancy

An employer must not include absences because of pregnancy or pregnancy related illness in ‘managing absence triggers’. A trigger is the number of days’ absence in an employer’s policy when managers would consider disciplinary warnings, and ultimately dismissal, unless attendance at work improves.

Neither should absences because of pregnancy or pregnancy related illness be included in any other kind of absence record. Also, negative comments or warnings about absences because of pregnancy or pregnancy related illness are likely to be discriminatory.

Dismissal

It is discrimination for an employer to dismiss an employee because of her pregnancy or maternity.

An employee can be disciplined while pregnant or on maternity leave as long as the reason for the disciplinary action is genuine and fair, and not related to her pregnancy or maternity in any way. If the employee has had a pregnancy related illness, the employer will need to be careful in agreeing to a date and location where the employee is well enough to attend a disciplinary meeting.

Redundancy

An employee must not be put at a disadvantage or discriminated against in a redundancy process because of her pregnancy or maternity. For example, an employer must not single out a woman for redundancy because she is pregnant, taking maternity leave or something linked to her pregnancy or maternity, such as being off ill because of her pregnancy. Pregnant employees or employees on maternity leave can still be made redundant but you should take care to ensure that a fully fair process is followed and that the pregnancy or maternity is not a factor in any decision. Under the Maternity and Parental Leave Regulations 1999 employers are obliged to offer women on maternity leave a suitable alternative position if one is available, prioritising them over other employees. Legislation is currently being proposed to provide even more protection by exempting women on maternity leave from being made redundant altogether so watch this space.

Maternity leave

An employer must not put pressure on an employee to work during her maternity leave or return to work from her maternity leave sooner than she wants. This is likely to be unfavourable treatment because of maternity.

Flexible working

If the employee has worked for her employer continuously for 26 weeks, she has the right to ask to work flexibly – she is likely to qualify to ask as maternity leave counts as continuous service. For example, this might be to reduce hours, change which hours she works or work the same number of hours but over fewer days. Or, it might be to work from home or as a job share or to go part-time.

There is a common misconception that women returning from maternity leave are entitled to change their hours. This is not the case. They are allowed to request a change, but they are not necessarily entitled to one. The employer must agree to flexible working where it can accommodate the request but can turn it down on certain grounds defined in flexible working regulations. However, it must make sure it does not discriminate and must be clear that the reasons for refusal do not in any way relate to pregnancy or maternity. Any tribunal would look very closely at a refusal in such circumstances.

Going back after maternity leave

An employee at the end of six months’ maternity leave has the right to return to her job on the same terms and conditions as before she left, if the job still exists and depending on how her employment contract defines ‘the job’.

If she takes more than six months’ maternity leave, she still has a right to return to her old job, however, if it is not reasonably practicable for her to do so, she can be offered a similar job where terms and conditions must be as good. This means someone covering in her old job cannot be given the role permanently because the employer thinks they are better at it than the employee returning from maternity leave.

Antenatal appointments

Pregnant employees are entitled to reasonable and paid time off for antenatal care advised by a doctor, midwife or health visitor. Antenatal care can be wide-reaching and include, for example, planning the employee’s medical care during her pregnancy, tests, scans and regular checks on her pregnancy. Time off includes any waiting at the clinic for the appointment and travel.

The partner of a pregnant woman has the right to take unpaid time off for two antenatal appointments up to six and a half hours for each.

Shared parental leave and pay

A new mother may decide with her partner that they would prefer to swap some of her maternity leave and pay for Shared parental leave and pay so they can share the responsibility of caring for their baby. This might be so they can be off work at the same time or take it in turns to take leave to look after their baby.

Contact during maternity leave

This needs sensitive and careful handling, and in practice can be a complicated area because an employer getting the level of contact wrong can lead to a claim of discrimination from a new mother who feels she has not been kept in touch with changes at work, job vacancies or opportunities or, conversely, from a new mother who feels she is being put under pressure to end her maternity leave early and return to work, or confirm early that she will be returning to work.

The best way forward is before maternity leave starts, employee and employer should meet so the employer can understand how, when and how often she would like to be kept in touch, about what and with whom. They should come to an agreement. Also, both should accept that once maternity leave starts, there may be a need for flexibility about what they have agreed.

Avoid stereotyping
Employers and employees should avoid making assumptions about women because they are pregnant or on maternity leave. Such assumptions can often be done without realising, this is known as unconscious bias. For example, this might include assumptions that someone who is pregnant or on maternity leave may have more time off work because they are pregnant, have chosen to become a mother rather than commit to a career and be less reliable when they return to work after maternity because of the demands of raising children.
Making such assumptions and uninformed decisions about employees or job applicants is discriminatory and has repercussions.

Impact of other protected characteristics
It is not uncommon for the different protected characteristics of pregnancy and maternity, and sex to interact. But whether a complaint amounts to discrimination because of pregnancy and maternity, or her sex, ultimately rests with an employment tribunal or court. This can be a complicated area.

If a job applicant or employee is treated unfairly because she is thought to be pregnant or taking maternity leave, whether this perception is correct or not, she may have a claim for sex discrimination.

What all employers should do

Develop a Pregnancy and Maternity policy
An employer should have a policy so that employees can find out and understand their pregnancy and maternity rights, and so managers know what steps need to be taken. For example, when should an employee tell her employer she is pregnant? Small firms may find it more practical to make clear what behaviours are acceptable and unacceptable through a staff handbook.

Pregnancy and Maternity awareness training for staff
An employer should provide training for all employees in constructively developing their general awareness and understanding of equality and diversity and promoting them in their workplace.

An employer should also provide specific training in managing pregnancy and maternity in the workplace.

For example, managers should be trained to know how to:
• Handle effectively and sensitively that first conversation when the employee tells them they are pregnant and set the correct approach and tone.
• Spot and deal with any conflict between the needs of the business and any needs of the employee because she is pregnant.
• Make sure the employee is clear on her rights, and reassuringly prepare her to leave work to have her baby and return after maternity, if that is what she intends.
• Plan how they will keep in touch during maternity leave, her return to work and any flexible working so she can manage childcare.

Here to help
As you will see, the issue of handling pregnancy and maternity leave in the workplace is much more complex than merely understanding the practicalities of leave periods and levels of pay. We hope that this article has given you valuable insight into the issue, and that if you have not already done so, that it encourages you to introduce specific policy and training in your workplace.

This is an area that Borders Employment Law specialise in and we can help you to introduce policy and train staff. Not only can we make sure that you are fully compliant with the law but we can considerably reduce the chance of pregnancy and maternity discrimination happening in your workplace. But if it does, we can help you deal with it properly and fairly.

Tackling tribunals

As you will probably be aware, employment tribunal fees were abolished in 2017, a huge change which saves claimants around £1200 for any employment tribunal which they bring against their employer. Unfortunately, this does mean that you as an employer are now at a much greater risk of having a tribunal brought against you and of course you would be liable for legal fees instead, regardless of the outcome.

This was certainly borne out when I recently attended the offices of Employment Tribunals in Edinburgh. I was absolutely astonished to see just how busy the offices now were, in fact I calculated that there was a seven-fold increase in the number of cases being heard compared to the numbers being heard prior to the abolition of fees taking place.

But don’t just take my word for it, since the fees were abolished there has definitely been a steep rise in the number of employment tribunal claims lodged. The latest Ministry of Justice official statistics, show that the number of receipts for single claims more than doubled when compared with the same period in 2017. Receipts for multiple claims more than quadrupled in the same period.

ACAS has also seen a 39% jump in the number of cases that have gone to an employment tribunal since fees were abolished and employment tribunal claims the conciliation service was involved with increased by more than 7,000 since the Supreme Court ruled it was unlawful to charge claimants up to £1,200 in tribunal fees.

Borders Employment Law are highly experienced in representing clients at employment tribunals and because of the changing landscape we would strongly encourage you to take action now which could save you a considerable amount of time and money in the future. As always, prevention is better than cure and having a robust set of employment policies in place and line manager training on key areas such as sickness absence and equality will go some way towards mitigating the risks.

However, help is at hand and we would recommend that you also consider taking the following steps.

  1. We can help you to make sure that everything is in order so that if you do get a tribunal brought against you, you are ready for it.
  2. If you do have a tribunal case brought against you, we can offer you full representation and protection at a low cost.
  3. As a UEL Member firm, we have exclusive access to an exclusive insurance policy which would not only pay for representation at a tribunal by myself as an experienced tribunal lawyer but could also cover you should an award be made against you.

I can’t emphasise enough what an exceptionally good product this is for employers, to make sure that you are fully compliant with the law and that if a case is brought against you, that you have the reassurance that expert representation is paid for as well as any award that might be made against you. Do give me a call and I can discuss the implications of an employment tribunal as well as introduce the considerable benefits of our specialist insurance policy to you.

The Good Work Plan

Sorry to mention the ‘B’ word but there have been a number of important announcements which have been totally overshadowed by Brexit recently. The Good Work Plan is a great example of this and with major changes to workplace laws being proposed, there are huge implications for employers and employees alike.

In December 2018, the Government published its long-awaited response to the Taylor Review. The Good Work Plan proposes reforms to labour laws which would protect workers who are not engaged in a traditional employment relationship.

The Taylor Review was written in response to the UK Government’s 2016 “Independent Review of Employment Practices in the Modern Economy” and provided a number of recommendations for improving working practices in the UK. The Government does appear to have accepted several of Matthew Taylor’s recommendations and if they are implemented, they will certainly improve workers’ rights in this country.

As an employer, you should be aware of these changes and review your current workplace practices so that you can implement the new laws as and when they are introduced.

Key reforms include:
WRITTEN STATEMENT – From 6 April 2020
Employees will have the right to a written statement of terms from day one of employment, rather than within the first two months (as currently). The right to a written statement of terms is extended to workers as well as employees.

This is the measure that will have most impact for businesses and it will be a requirement that from 6 April 2020 to issue a statement of terms or a contract from day one to both employees and workers. One practical way round this may be to ensure that your offer letters cover all the required elements and that they are sent to all new starts.

HOLIDAY PAY CALCULATION – From 6 April 2020
The reference period for calculating a week’s pay (for holiday pay) is extended from 12 weeks to 52 weeks. Relevant to where the pay is variable, such as regular overtime.

SWEDISH DEROGATION – From 6 April 2020
The Swedish Derogation, which gives employers the ability to pay agency workers less than their own workers in certain circumstance, is abolished.

SANCTIONS REGIME – From 6 April 2019
The rarely imposed penalty for employer’s aggravating conduct will be increased from £5,000 to £20,000.

MATERNITY LEAVE AND REDUNDANCY
In addition, the Government published a consultation paper on extending the right of employees on maternity leave who are selected for redundancy. The current rule is that they must be given priority over other redundant employees for suitable alternative employment.

The Government is considering extending this right to:
• Women who have returned from maternity leave in the previous six months, not just those who are currently on maternity leave.
• Women who have told their employer they are pregnant.
• Employees on adoption leave, shared parental leave and longer periods of parental leave.

CLARITY OF EMPLOYMENT STATUS
The Good Work Plan proposes new legislation to ‘improve the clarity of the employment status tests’ that are applied to determine who has employment or worker rights, and to align the employment and tax status tests.

CONTINUOUS SERVICE
Extending the period (from 1 to 4 weeks) of any break in service that is allowed when calculating an employee’s qualifying period for continuous service. This break in service is relevant when calculating whether an employee has accrued sufficient service to claim unfair dismissal and redundancy pay and would benefit casual employees who work intermittently for the same employer.

MINIMUM HOURS AFTER 26 WEEKS SERVICE
The right for all workers (including agency workers and workers on zero hours contracts) to have a contract guaranteeing minimum hours of work after 26 weeks’ service.

TRIBUNALS ‘NAME AND SHAME’
A new ‘name and shame’ scheme for employers that do not pay employment tribunal awards within a reasonable time.

Conclusion
As you will see, the proposed measures are extensive and far reaching and they will indeed have huge implications for employers and employees. However, the Good Work Plan does demonstrate the Government’s commitment to the Taylor Review and provides some clarity for employees and employers about how the legal landscape for workers’ rights might look post Brexit.

Changing times

Change is an inevitable part of life and something that most people find difficult to cope with, particularly in the workplace where the challenges can abruptly alter the course of one’s career and lifestyle. But in today’s business climate, companies are often forced to implement sweeping changes in an effort to grow and survive.

As a result, change can happen quickly, often before employers and employees have had time to prepare and keeping your workplace running effectively means helping employees cope with those changes. Employees fear of losing their jobs, being transferred to unfamiliar positions and having little control over workplace events can trigger increased tension, uncertainty, anger and other forms of work-related stress.

Effectively managing change in the workplace means not resisting change and challenges but having the necessary skills to effectively manage the issues and helping employees to cope with them.

What is change?
Change is usually characterised by a desire to improve things whether that’s cash flow, products or processes.

Change can be either planned or unplanned and it can affect individuals or the organisation as a whole. Major changes can mean mergers, redundancies, re-structuring or new working practises. Minor change can mean anything from the introduction of new training courses or company policies to travel arrangements.

What can cause change?
Both internal and external pressures can cause a change, external pressures could be changes in global markets, technology or even government legislation. Internal pressures could be the need to review policies and procedures, accommodation issues or pay structures.

Managing change
Although every situation is unique, and every business is different, there are common elements to managing change.

Plan for change – although some change comes out of the blue it is better to be able to review a plan then to have no plan at all.
Provide leadership – this is particularly important during times of uncertainty when employees will need reassurance.
• Keep up-to-date with the law – legislation covering redundancies for transfer of undertakings (TUPE)

Changes needs to be managed pro-actively for the following reasons.

Economic survival – developing new products or retraining staff.
Accountability – effective change management gives a chance to explain, to internal and external customers about what you are going to do and why.
Organisational effectiveness – rushed and unplanned for change can damage the confidence of staff and customers alike.
Employment relations – badly managed change can cause long lasting resentment and ill feeling.

Should you consult with employees over changes?
Often employers need to consult with employees due to a legal requirement during periods of major change such as redundancies, mergers or transfer of undertakings (TUPE). This can help to maintain performance and productivity by improving employee engagement.
Engaged employees are likely to adapt better to change and have an easier emotional journey because they know they will be consulted with regularly and given some say in the decision-making process and, because they identify with the future success of the organisation.

What will my employees want to know about a change?
When you talk to your employees about any change to the organisation and their working lives, they will expect the following from you as an employer:

• Question any plans and the reason for them.
• Know that their concerns will be listened to by senior managers.
• Reassurance about how the changes will affect them personally.
• Clear direction and leadership.

What feelings do people experience during periods of change?
Change can affect the way people feel emotionally, mentally and physically. Although change is generally seen as negative, this may not always be the case, for example during a period of reorganisation employees may fell their jobs are under threat, but they may also feel they have the opportunity to achieve greater career fulfilment.

Naturally, employees will go through a range of emotions whilst change is taking place, from anxiety, happiness, fear, through to depression and gradually there will be acceptance before the final stage – moving forward.

CONCLUSION
Change is one of the great certainties of business and we hope that this article provides you with useful background on the effects that change can have on an organisation and its employees. Of course, managing change in the workplace can be challenging, but with our experience in handling redundancy, TUPE and contracts of employment, Borders Employment Law are more than qualified to help. We can provide guidance and advice on best practice for planning and implementing change, the importance of good leadership and staff consultation, as well as on the legal aspects of change management.