Archive
Month: November 2022
£1.7m award – unfair dismissal and disability discrimination
A tribunal has awarded £1.7m in compensation following a successful unfair dismissal and disability discrimination claim. An employee lost access to private medical cover he relied on for cancer treatment after being made redundant. Here’s what you need to know.
Background
An employee had suffered from cancer most of the time he’d worked for the employer. He relied on the employer’s private medical cover to manage symptoms and receive treatment (unavailable on the NHS). He was made redundant despite colleagues having alternative roles created – losing access to private medical cover when he lost his job. He was unable to find an alternative before losing his battle with cancer. The £1.7m compensation was awarded to his widow.
Practical takeaway
Genuine consultation – the tribunal said there was a meaningless consultation process and no exploration of alternative roles. Take early advice on the appropriate consultation process to follow and save evidence of all consultation processes and discussions.
Loss of benefit – typically the loss of private medical cover won’t attract compensation as the NHS can continue the care. However in this case the NHS was unable to do so at the same speed and level of specialism. Do your homework and understand whether the loss of private medical cover is likely to result in a worsening of the employee’s condition. If so, you need to understand the potential financial exposure if any dismissal is considered unfair or discriminatory.
Get in touch if you need our advice or support.
This update is accurate on the date it was sent (11 November 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
People Pulse – when do you need to pool?
When you have more employees than the roles available, you may need to ‘pool’ those employees carrying out the at-risk roles to fairly decide who remains at risk. It’s usually the case that you’ll want to restrict the pool as much as possible. Here are our thoughts:
Be clear on the roles at risk – identifying which roles need to be pooled isn’t always as easy as it sounds. Do you have different job titles for the same roles? Have job titles and job descriptions failed to keep up with the roles individuals are actually doing? This all needs to be considered.
Identify the individuals carrying out the roles at risk – do a number of individuals interchange between different roles as they have a wide skill set? In which case would it be reasonable to include all such individuals within the pool.
Consider individuals at other sites doing the same at-risk roles – where individuals move around sites and all do the role that is at risk, consider whether each of those individuals needs to be pooled.
Bumping – if you haven’t heard of ‘bumping’ you’ll need to learn fast! Bumping occurs where an at-risk employee is retained in favour of an employee who isn’t at risk (usually as they have better skills for the retained role). While there is no obligation to bump, you need to consider whether it’s appropriate to do so and make a note of your thought process.
Consult – if you have more employees than the number of roles at risk you’ll need to consult on whether you should pool (as in this case). A fair redundancy process includes giving individuals the right to challenge the pool before scoring at-risk individuals.
If you need advice or support with ‘pooling’ employees, Intelligent Employment is here to help – find out more!
This update is accurate on the date it was sent (24 November 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Are you sure your conversations are confidential?
A recent Employment Appeal Tribunal (EAT) decision is a reminder that not all communication with advisers you’d deem confidential will be held by a tribunal as such. This decision highlights the need to exercise care if you’re not taking advice directly from a qualified employment lawyer as it may be required to be disclosed at tribunal. Here’s what you need to know.
Background
In the recent EAT decision, Citation Ltd (an HR advisory business) was forced to disclose their advice, which related to an employee’s request for flexible working and reasonable adjustments, as the advice was provided by an HR adviser rather than a qualified lawyer.
Practical takeaways
Legal advice privilege – if the advice that you take is covered by ‘legal advice privilege’ (LAP) it means the advice cannot be required to be disclosed at tribunal – sometimes very helpful if the advice is that you’re dealing with discrimination or unfair dismissal! If you’re working with a qualified lawyer the advice will be covered by LAP.
Disclosure risk – clearly, this case doesn’t mean that you should only ever take advice from employment lawyers. But, you do need to be aware of the risks of disclosure where you don’t.
If you’re unsure about whether your advice is covered by legal privilege or want to ensure that it is moving forward, Halborns can help – get in touch.
This update is accurate on the date it was sent (22 November 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
People Pulse – would you lend your employees money?
It’s a complex question but it’s one that’s been coming up more and more often over recent months. We’ve shared the positive steps you can take to support employees’ financial well-being in our ‘10 minutes with: The Money and Pensions Service‘.
But what do you need to consider when an employee asks for a loan and advance?
Agreed principles – you’ll need to debate at a senior level what support you’re willing to offer. Is it a blanket ‘no’, the offer of a single loan or a more flexible approach – they all have their challenges and opportunities.
Who to ask – you’ll want consistency in your approach to loans. Ideally, one or two individuals should understand your loan policy and be able to implement it.
How to request – ideally you’d have an online form that the employee completes explaining the amount they want to borrow, how soon they’ll be able to repay the amount and the reason for the loan. You also want to know by when they need the money.
Refusing requests – if you’re not able to offer financial support, do you have measures in place to ensure the employee doesn’t spiral downwards due to the financial pressure they’re under?
We’re adding a loan policy to our Intelligent Employment platform to help you explain steps employees must take to request a loan, any limitations, repayment arrangements and more. Find out how to access Intelligent Employment.
This update is accurate on the date it was sent (17 November 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Christmas party calamities
You’d think with an experienced team of employment lawyers there’s nothing we haven’t seen – but Christmas never fails to deliver! Trashed hotel rooms, affair confessions, and an employee left on a motorway hard shoulder…we could go on.
Here are our hints and tips on making sure the only turkeys are those eaten on Christmas day!
Inclusive invites – make sure everyone is kept in the loop and given the option to accept or decline events, including employees on family-friendly leave or sick leave. It may not be the intention to leave anyone out but an inclusive approach avoids potential discrimination arguments (this case highlights the point).
Best behaviour – there’s a low threshold for successful harassment claims so ensure you set the right tone from the top down and deal quickly with any unwanted behaviour.
People policies – a subtle reminder of your key people policies should help to reduce potential calamities (think behaviour outside of work, dignity and respect at work).
Aligning managers – ensure you’ve reminded managers of the people challenges that might come their way in December and the reputational risks and further consequences if they fail to deal immediately with team members’ inappropriate behaviour.
Get in touch if you need our advice or guidance – Intelligent Employment is here to help.