Category: Employment Law

Employment tribunals deal with claims brought against employers by employees. Claims can typically relate to unfair and wrongful dismissals, discrimination, equal pay, and deductions from wage deductions.

The employment tribunal is an independent body that operates outside the court system and provides an accessible, informal, and cost-effective means of resolving disputes between employees and employers.

When it comes to employment law, matters can become quite complicated. Therefore, many choose to have a lawyer to help them through the tribunal process.

Some examples of the type of dispute heard by employment tribunals include:

• Unfair dismissal
• Wrongful dismissal
• Equal pay
• Discrimination
• Harassment
• Deductions from wages

However, not all employment-related matters are heard in the employment tribunal.  Examples of employment disputes heard by civil courts are :

• Accidents at work
• Restrictive covenants
• Contract claims for non- payment of wages
• Wrongful dismissal claims and other contract claims

Proceedings in an employment tribunal can generally take some time, and inevitably cost money in legal fees.  Therefore, the parties may wish to settle an employment dispute without going through a full hearing either:

• Between themselves directly
• By using a conciliation service (ACAS)
• By using an internal or external mediator

The employment tribunal’s decision is legally binding and can include orders for the employer to pay compensation or take specific actions such as reinstatement. If either party disagrees with the decision, there is the possibility of appealing subject to specific requirements. 

At Aston Bond we strongly believe that the employment tribunal is an essential forum for employees to seek justice and protect their rights in the workplace.

For more information, please contact head of employment at Aston Bond on imadarescu@astonbond.co.uk or 01753 486777.

What is menopause?

The menopause is when a woman stops having periods. While this natural stage of ageing tends to happen around the age of 45 to 55, some women experience it earlier in life. Certain health conditions, as well as medical interventions and medication, can also trigger it.

When going through the menopause (or the period just before it which is known as perimenopause) women experience symptoms such as:

• Hot flushes
• Repeated urinary tract infections (UTIs)
• Difficulty sleeping
• Anxiety
• Mood changes
• Difficulties with memory and concentration (often referred to as “brain fog”)

What do studies show?

According to Newson health (a specialist clinic) 51% of menopausal women take time off work due to their severe symptoms.  

The report published by the cross-party Women and Equalities Committee of the House of Commons in July 2022 also confirmed that menopause was causing the UK economy to “haemorrhage talent”.

The existing data highlights why women feel concerned about their difficulties. Many of them fear discrimination, ranging from being skipped for promotion to losing their jobs. Under the circumstances, they might deny what they are going through, and avoid seeking support.

What has the government done?

The report from the Committee made various recommendations, key amongst which was making menopause a protected characteristic and including a duty to provide reasonable adjustments for menopausal employees.

The government however has refused to do so on the grounds that such an action could have “unwanted consequences” and could inadvertently “…discriminate against men”.   In clarifying, some of the concerns surrounded whether men with long-term medical conditions would be disadvantaged or become less protected.

Among the other recommendations made by the Committee was the introduction of menopause leave under which a woman would be able to take leave from work if they were suffering from severe menopausal symptoms, similar to being able to take maternity or parental leave.

In common with the protected characteristic proposal, this was also rejected by the government.

In response, a government spokesperson said: “We recognise that the menopause can be a challenging time for women, which is why we have put women’s health at the top of the agenda as part of the first-ever women’s health strategy for England.

“We are implementing an ambitious programme of work with the NHS to improve menopause care so all women can access the support they need.”

Despite the government not backing some of the recommendations made by the Committee, it has backed and will implement other recommendations made.  It is also widely accepted that there has been a shift in attitudes generally and discussions are taking place within businesses, the NHS and other relevant bodies which is pushing these issues to the forefront.  Furthermore, employees that are having issue due to the menopause may be protected within the Equality Act under both age and gender discrimination.

Despite the government refusing to go as far as some may have wanted, a menopause policy within the workplace is looking more and more essential to guide employers and managers on how to deal with such situations.

At Aston Bond, we can advise on policies to implement and training for employers as well as advising employees who may be experiencing issue at work surrounding this topic.  Please contact imardarescu@astonbond.co.uk or 01753 486777

The 2022 World cup in Qatar sees 32 nations taking part in 64 matches until Sunday 18^th December. This large sporting event means employers should plan ahead and be prepared to be flexible to minimise disruption to the business.

It is likely staff will want to watch some of the matches and therefore requests for holidays and flexible working may increase over this period.  How employers treat their staff over this period could set the tone for their future working relationship so it is worthwhile having this in mind. 

There are several reasons why the world cup could provide fresh challenges for employers:

• It is the first ever winter world cup.

Most employers are used to dealing with their workforce taking holidays during the summer. However, that is often a quiet period in any event.  For many businesses, the weeks leading up to Christmas are their busiest period and this World Cup therefore creates additional staffing issues. 

To avoid the risk of too many staff requesting time-off, employers could make arrangements for the matches to be watched at work in the staff room for instance. 

• The choice of country is controversial due to its views on LGBTQ+ members of society.

Individuals who would ordinarily support and enjoy the event are taking decisions not to watch matches and employers should be sensitive to these views in their organisation of any World Cup-related events or activities.

• Discriminatory “banter” is always a danger.

Events such as the World Cup increase the risk of discriminatory comments and employers are likely to be liable for comments made by their employees in the workplace or at work events. Employers should consider reminding employees of their responsibilities and how easy it can be for “banter” to cross the line into discrimination.

• Procedural fairness

Employers need to ensure that any requests for holidays and flexible working are dealt with fairly and equally for all.  In particular, employers should not favour for instance the England matches only but should be aware that staff members may want to support their own team/country throughout the World Cup.

Employers should bear in mind that refusing annual leave for business reasons is possible – but as always a clear procedure should be in place and criteria communicated effectively.

At Aston Bond we understand that this large sporting event can be a chaotic time for employers.  For any assistance in dealing with staffing issues over this period, please contact:

imardarescu@astonbond.co.uk (Head of employment )

The national living wage is the government-set minimum rate that employers must pay to staff for each hour worked.

Starting from April 2023, millions of workers will be getting a boost in their wage packet after Chancellor Jeremy Hunt announced a rise in the National Living Wage.  The rise was announced yesterday at a rate of 9.7% from April which is a considerable increase to past years.  This means that the rate in real terms will increase in April as follows;

For 23 years olds and over –  £10.42 per hour.

For 21-22 years old – £10.18 per hour.

18-20-year-olds – £7.49.

16-17 year olds – £5.28.

Apprentice rate will also be £5.28 per hour.

The move is expected to benefit more than two million of the UK’s lowest-paid workers.  Whilst it has largely been welcomed there has been some criticism that self-employed individuals have been forgotten.

However, the pending increase has caused some concern for SMEs.  Many small businesses will struggle with the increase alongside the increase to energy and other costs and this in turn could well lead to an increase in redundancies. 

Employers will need to use all of their skills at this time to encourage good financial health within their businesses.  It is always advisable to discuss and plan areas which can be improved with employees and to get them involved, both in the ideas and implementation of any cost-cutting exercise.  Undoubtedly one of the ways small businesses will look to cut costs is through redundancies.  However employers “will need to ensure they carry out the process fairly and properly to avoid any future legal complication.  Redundancies may not be the only way forward either and advise should be sought early on in considering other options, such as implementing lay-offs and short-time working if necessary.

At Aston Bond, we help businesses ensure they get it right – be that the rate they pay, the contracts they have in place or the procedures required to make changes the a business.

If you would like discuss your options, please contact Ilinca Mardarescu  (Head of Employment) on imardarescu@astonbond.co.uk

The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 will come into effect on 5^th December 2022. 

What are exclusivity clauses?

An exclusivity clause in an employment contract is a clause which restricts employees and/or workers from also taking on additional work or entering into any other working arrangement with another employer.  They are relatively frequent and often also require the worker to obtain an employer’s consent before undertaking work for anyone else.

The ban on exclusivity clauses for zero hours workers has been in place for some time now.  However, these regulations will extend that protection to include any workers who earn less than the Lower Earnings Limit (currently £123 a week) ensuring that such workers are not restricted by exclusivity terms also.

It will give such workers the right to take on additional employment without being subjected to detriment and/or unfair dismissal where applicable.  Importantly, the qualifying period of two years will not be required under such circumstances.

It is hoped that these measures will;

• Increase participation in the labour market generally;
• Allow workers and employees to gain more flexibility and control;
• Drive higher employment and fill gaps in many industries; and
• Encourage greater economic growth.

The government aims to give businesses the confidence to hire and retain workers and to provide their workforce with the skills and experience that they need to progress in work.  For those who are vulnerable due to the cost-of-living crisis, these measures will help to ensure that low-income workers can boost their incomes with additional work should they wish.

Companies will need to be conscious of these changes so that they do not unintentionally pursue an invalid exclusivity clause or impose an existing one in circumstances which are now banned by the regulations.

Employment law is a fast-moving area of the law. To ensure the contracts you use are up to date and in line with current legislation, please contact us for a free no-obligation review.

For more information, please contact Ilinca Mardarescu (Head of Employment) on imardarescu@astonbond.co.uk

In August of 2022, a telemarketer who refused to keep his webcam on whilst working was fired by Chetu, the US IT company he had worked for since 2019.

The employee was told to share his screen and leave his camera on whilst working.  When he declined, the company fired him for ‘refusal to work’.

The employee had refused by saying ‘I don’t feel comfortable being monitored for nine hours a day by a camera. This is an invasion of my privacy and makes me feel uncomfortable. That is the reason why my camera is not on. You can already monitor all activities on my laptop, and I am sharing my screen’.  However, Chetu argued that this was no different from an employee being observed in an office environment.

Chetu did not appear at the court hearing neither did they provide a statement.

In September, the European Court of Human Rights disagreed with the company and stated ‘Video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee’s private life’.

There was no sufficient justification for the monitoring by Chetu, and therefore the employee’s privacy rights had been violated.

Surveillance in the workplace is increasingly becoming an area of contention between companies wishing to keep tabs on their employees.  The pandemic has seen a rise on companies implementing various methods of surveillance but this recent case has highlighted how worker’s rights need to be considered carefully to ensure privacy is not unduly infringed.

Experiencing unjust treatment at work can be overwhelming. At Aston Bond, we act in all areas of employment law such as unfair, wrongful, and constructive dismissals and discrimination claims.

We work with you to understand the issues at the core of your grievance. Our experienced team ensure your matters are dealt with quickly and amicably where possible. We offer realistic solutions to suit you.

For more information, please contact Ilinca Mardarescu (Head of Employment)

 on imardarescu@astonbond.co.uk

In the judgement of Dobson v North Cumbria NHS Trust, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) failed to consider that women, because of their childcare responsibilities, are less likely to be able to accommodate flexible working, including working on the weekends, than men. The EAT referred to this as “childcare disparity” and accepted that the burden of childcare falls disproportionately on women, affecting their ability to adapt to certain working patterns.

After twenty years, the courts and tribunals have taken judicial notice of this disparity and the EAT concluded that the childcare disparity should have been accepted by the tribunal in Dobson v North Cumbria.

Mrs Dobson worked for the North Cumbria Integrated Care NHS Foundation Trust as a community trust. She was working two consistent days a week, but following a review, she was asked to work flexibly, including at weekends. Mrs Dobson was unable to commit to this arrangement because of her caring responsibilities for her three children, two of whom are disabled.

Mrs Dobson’s employment was terminated, and she subsequently bought indirect sex discrimination, unfair dismissal, and victimisation claims. The ET dismissed her claims but she subsequently appealed with the help of Working Families, who intervened and raised the issue of whether the ET should have taken judicial notice of childcare disparity between men and women.

Recently, the EAT found that the ET had erred in limiting the pool for comparison to the team in which the claimant worked and instead confirmed the appropriate pool was all community nurses across the Trust. The EAT also found the ET to have erred in finding no group advantage.  The ET should have taken judicial notice of the fact that women, because of their childcare responsibilities, are less likely to be able to accommodate flexible working patterns. The EAT’s conclusions meant that the ET’s decision needed to be reconsidered.

A similar decision was made by the EAT in Hughes v Progressive Support Limited where Mrs Hughes’s employment was not terminated, but her employer said that her contract would be changed to a zero-hours contract if she did not work the hours her employer requested. The EAT found there was indirect sex discrimination if an employer asks an employee to work certain hours, regardless of their childcare responsibilities, even if no penalty was imposed against the employee.

The recent case law makes it clear that certain working patterns and associated rules imposed by employers can disproportionately impact certain groups.  Employers will now need to be conscious of how the issue of childcare disparity can (disproportionately) affect certain groups of its employees.

For any assistance with this issue or any employment-related matter, please contact our Head of Employment Ilinca Mardarescu.

Gender critical theory, the idea that sex should not be conflated with gender identity, is now protected as a philosophical belief under s10 of the Equality Act. The implications this has for the workplace resides on whether beliefs that can be considered discriminatory against specific groups, can be legally protected as a “characteristic”.

Back in 2019, Maya Forstater claims she was unfairly discriminated against by her workplace, the thinktank Center for Global Development (CGD), over tweets she made in response to the proposed reforms to the Gender Recognition Act. Employees at the CGD complained that her tweets were “transphobic”, and her contract was not renewed.

The first Tribunal ruled that gender-critical beliefs do not satisfy the Grainger criterion, as these beliefs do not respect human dignity or the “enormous pain that can be caused by misgendering” and are therefore excluded from protection.

Despite this, it was allowed to be appealed to the EAT, believing that the first Tribunal had made an error in its application of Grainger. The criteria will generally protect all philosophical beliefs unless they cross a line into something akin to fascism. With this, the EAT judged that whilst Ms Forstater holds views that may be considered offensive to some, they would not be excluded from protection under the Equality Act. According to the Employment Appeal Tribunal’s final judgement, beliefs that honestly express personal beliefs without actively inciting hate or harassment must be “worthy of respect in a democratic society”.

However, it stressed that transgender people still have equal rights in the workplace, as the ruling has not “expressed any view on the merits of either side of the transgender debate”. Anything crossing the line into hate speech can be justifiably restricted under Article 9(2) or Article 10(2) of the European Convention on Human Rights.

The difference between holding a belief and expressing it raises several questions as to whether the specific philosophy is dangerous to specific groups. The EAT judgement maintained that intentionally misgendering someone with the intention to cause offence is still prohibited and it is not giving those with gender-critical beliefs impunity.

Therefore, whilst this may be seen as a lack of progress for those campaigning for better workplace protection for trans people, their rights are still equally upheld under the Equality Act.  For an employer, finding the right balance between two opposing rights such as these will be the real a challenge.

 

For any assistance with this issue or any employment-related matter, please contact our Head of Employment Ilinca Mardarescu

The Care Act 2014 recognises that supporting carers is of equal importance to supporting the people they care for. Therefore, since the implementation of this Act, carers rights have been put on a similar footing to the rights of disabled adults. 

A carer is someone who gives support and care to an adult who is their partner, child, friend or another close relative. Under the Act, the local authority must consider the well-being of the carer and consider whether there are steps it can take to prevent, reduce or delay any needs the carer has. 

Assessment of a carers needs

S 10 of the Care Act 2014 provides that where it appears to a local authority that a carer may have needs for support now or in the future, the local authority has a duty to carry out an assessment of those needs. Neither the carers or the disabled adult’s financial resources or the level of need of support will be taken into account in making the assessment. It is still possible to have an assessment if the person that is being cared for is not receiving local authority support, or if the person being cared for doesn’t live in the same local authority area as the carer. 

How does the assessment work? 

Your local authority must offer advice and support regarding carers right to an assessment to everyone in their local area. 

• Most local authorities will require the carer to complete an online self-assessment. However, if required this can be over the telephone, on paper, or face to face instead.
• The assessment will be looked at by a trained person from the local authority or another organisation so they can understand the carers needs and how they can be met.

The eligibility criteria

• The local authority will then apply eligibility criteria to the needs of the carers needs to see which ones are eligible for support. 
• The local authority will need to understand whether your mental or physical health are affected now, or are at risk of being affected in the future. 
• They will also look at whether you are unable to look after children, care for other people who want you to, look after your home, prepare food and look after your diet, have personal relationships, take part in education, work or volunteering, or find time for social activities. If these factors combined are impacting your wellbeing you may be eligible for support. 
• After applying the eligibility criteria has been applied, the local authority carries out a financial assessment which will help them to provide the necessary support for the carer. 

How can the local authority support a carer’s needs? 

If the assessment shows that the carer has eligible needs then the local authority will implement a support plan which identifies what the carer’s needs are and how they will be met. The support plan is an agreement between the carer and the local authority, and will generally be in the form of direct payments to the carer who can then arrange and pay for their own support. The support plan is usually reviewed 6-8 weeks after it is agreed, and then at-least once every 12 months. 

Young Carers 

Section 63 and 64 of the Care Act 2014 provides that where a young carer is likely to have needs for support after turning 18, the local authority must carry out a ‘young carer’s assessment’. Within this, the local authority considers whether the young person is willing to provide care beyond the age of 18, the amount that the young carer would like to work or participate in education and the impact that providing care may have on the carer. 

Once the young carer’s assessment has been carried out, the local authority must indicate whether the young carer is likely to meet the eligibility criteria once they are 18. They must also offer advice and information about meeting or reducing the young carer’s needs for support, or about preventing or delaying further needs which may develop.

Parent carers of children

The Children and Families Act 2014 gives parent carer’s the right to a stand-alone assessment and right to services. This assessment is called a ‘parent carer’s needs assessment’; the local authority must assess whether that parent has support needs. Once the local authority has done this and assessed what the needs are they must identify the support and services available to help the carer and their family. 

For more information on the rights of carer’s, get in touch with our supportive team to help. 

Sources: https://www.rethink.org/advice-and-information/carers-hub/carers-assessment-under-the-care-act-2014/

https://imprivateclient.passle.net/post/102gzyj/a-whistle-stop-tour-of-carers-rights

As part of the Government’s roadmap out of lockdown (and in part due to the success of the vaccination programme so far) as of 1st April 2021 anyone who is classified as clinically vulnerable will receive a letter confirming they are no longer being advised to shield.

All those that have previously received a shielding letter will now be contacted again to advise that they no longer need to shield.  Public Health England has issued new guidance to those categorised as extremely clinically vulnerable which includes advice on social distancing, hygiene, work and travel.  The advice will be to continue taking precautions generally but, crucially, will state;

“Everyone is currently advised to work from home where possible. If you cannot work from home, you should now go to work.”

Importantly, as of 1st April 2021, both Statutory Sick Pay (SSP) and Employment and Support Allowance (ESA) will no longer be available on the grounds of anyone shielding.

The extended Furlough scheme will be available where employees are eligible but this is purely at the discretion of the Employer.

For employees who are still worried and concerned about going in to work, this will no doubt increase anxiety.  Employers have a duty of care towards their employees and need to ensure their health and safety where possible.  No doubt this will be a contentious matter and is likely to lead to an increase in claims being made unless handled properly.

For advice on how to deal with the transition back to work for those that have been off for a while, contact our Head of Employment, Ilinca Mardarescu.