Keeping up to date

Here are our thoughts on introducing mental health champions in your organisation.

Create clarity

Be clear about what the role involves, create an internal advert and role profile, and reassure them that they’re not supposed to be therapists or psychiatrists. Mental health champions need to be caring and compassionate individuals who can help proactively promote mental wellbeing, provide non-judgmental confidential support and sign-post employees in the right direction if further help is required.

Passionate people

As a volunteer, they’ll be taking on the role alongside their ‘day job’ so ask employees to apply and choose people who are passionate about supporting you to develop and promote mental health and wellbeing initiatives and willing to give their time. You may want to check with their manager that they’re able to give their time for the role.

Driving performance 

Set out in writing what’s expected of them, how they need to prioritise their own work to avoid concerns about their performance and signpost them to support available for them personally too.

Internal profile

When launching the role and introducing your mental health champions, ensure everyone is clear on the support offered and how contact can be made. Be clear on the confidentiality of discussions and the role the mental health champions take.

Give them a voice

Create a platform for your mental health champions to provide you with feedback on workplace mental wellbeing to help shape and influence your wellbeing strategy and initiatives.

Give them tools 

Whilst they don’t need to be medical experts, having the ability to identify a colleague in need of expert support and a good understanding of how to approach a situation is crucial.

To write it down! Choosing the right type of document is key. Here are our thoughts to help you get it right.

Settlement agreement

The employee settles any employment law claim listed in the agreement (whether contractual or statutory – save for a handful of exceptions). To be legally binding, the employee must take independent advice from a lawyer (which can lengthen negotiations) on the terms and effect of the agreement. You’ll need to contribute towards the employee’s legal fees.

Contractual termination letter

Use with caution! The letter confirms that in return for a payment, the employee waives any contractual claims against you. But, this letter doesn’t (and can’t) prevent the exiting employee from bringing a statutory claim against you so be sure to take advice before suggesting this type of agreement. This letter is great for low-risk scenarios or scenarios where you’re not offering the exiting employee much of an incentive financially (or otherwise) to exit.

COT3 agreement

A great option if ACAS early conciliation has been triggered (if it hasn’t then you don’t have the opportunity to use this agreement). These agreements are usually fairly brief (typically two pages) making them ideal for more straightforward situations. There’s no requirement for the exiting employee to take legal advice on the terms of the agreement (although ACAS’ involvement often proves a reassurance).

However, ACAS may not be willing to support this type of agreement if you’ve asked for ACAS’ support at a very late stage. Equally, ACAS may resist anything more than their ‘standard terms’ for this type of agreement.

Our Intelligent Employment platform includes our up-to-date COT3 agreement template – for more information on accessing our documents, get in touch.

A finger on the mental health pulse

Engagement surveys; are simple, but effective. They don’t have to be long or complicated but regularly asking your team ‘how it’s going’ is a great way to identify if someone is struggling with their mental health and allows you to support them proactively. We’ve included an engagement survey within our mental health toolkit for employers. Click here for more info.

Don’t rely on self-reporting

Make sure mental health and well-being is a two-way conversation. Even if a survey is anonymised, employees still might not feel able to share how they’re doing. Empower your managers with the tools, skills and training to sensitively approach members of their team in real time and discuss what support is required and how they can help.

Stay connected 

Remote and hybrid working can create barriers to effective communication and often help mask potential issues. Encourage teams to stay off internal emails, avoid the phone and make the most of face-to-face meetings and video calls where possible.

One size won’t fit all 

Actively listening to concerns and avoiding assumptions (or your personal experience with similar issues) will help you and your managers to implement more appropriate support on a case-by-case basis. What works for one might not work for another. Remind employees about any Employee Assistance Programme you have or signpost them to charities/organisations that can provide support with what might be concerning them.

Drafted well, the confidentiality clause is lawful and reasonable. But to achieve a workable agreement the wording needs to take into account the following:

Protected disclosures

Make clear that nothing in the confidentiality clause prevents the exiting employee from ‘blowing the whistle’. If it looks like you’re attempting to stop them from blowing the whistle the clause and possibly the entire agreement will be unenforceable.

Likewise, don’t expect to be able to prevent the exiting employee from working with authorities, including the police, about the matters covered by the agreement (even about any already known claims, grievances or issues).

Carve out exceptions

Make it clear that the exiting employee isn’t prevented from discussing or raising specific issues with you. Although there’s no legal requirement to do this, including wording along these lines helps with the enforceability of the wording.

Protecting well-being

Call out that exiting employees can speak about the terms of their agreements with professionals including medical, therapeutic, counselling, legal or financial support services.

Updated Code of Practice on ‘fire and rehire’

The government has published an updated Code of Practice (the Code) on dismissal and re-engagement (also known as ‘fire and rehire’). The position largely remains unchanged in that the practice should remain a last resort, but there have been a few tweaks:

• Employers should contact ACAS before raising the prospect of fire and rehire with employees;
• The Code doesn’t apply to redundancy situations, but will apply if redundancy and fire and rehire are both being considered (basically the Code applies for as long as fire and rehire is an option);
• Employers are required to consult with employees ‘for as long as reasonably possible’ (there’s no minimum time period set);
• Employers shouldn’t threaten dismissal if it’s not actually a possibility.

If an employer fails to follow the Code, a tribunal has the power to uplift any compensation awarded by up to 25%.

New bereavement bill proposes day-one right to shared parental leave

The Shared Parental Leave and Pay (Bereavement) Bill (the Bill) aims to introduce a day one right to shared parental leave (SPL) and pay for fathers or working partners upon the death of the mother of their child. In these circumstances, the Bill removes the requirement for 26 weeks’ service to qualify for SPL and for employees to have notified their employer three months in advance in order to take the leave. The Bill is still working its way through parliament and we’ll keep you updated with progress.

New menopause workplace guidance published 

The Equality and Human Rights Commission has published guidance for employers on menopause in the workplace. The guidance covers employers’ legal obligations in relation to menopause and the potential for it to be protected by the Equality Act 2010 (on the basis of age and sex), as well as adjustments that can be made to avoid possible discrimination risks. It also provides guidance on encouraging a more open culture on the topic so that employees feel more comfortable to talk, share and access any support they might need. We’ve got a menopause policy on Intelligent Employment to help get you started!

People diary dates – May 2024

05 – International Family Equality Day

13-19 – Mental Health Awareness Week

16 – Global Accessibility Awareness Day

17 – International Day Against Homophobia, Transphobia, Biphobia

But supporting exiting employees and ensuring settlement agreements encourage individuals to have the confidence to flourish (and even return one day) once they’ve left your employment doesn’t stop there. Here are our thoughts on settlement terms that often cost little but can achieve a lot.

Continuing employee benefits

If you’ve already paid the annual premium for benefits (such as private medical or life assurance), allowing access to those benefits for an agreed period after the employee has left (subject to insurer approval) allows the employee to feel protected until they secure their next role (possibly with similar benefits).

Outplacement and coaching support 

It may be years since the exiting employee dusted off their CV or attended an interview. This support gives confidence to those concerned about putting themselves ‘out there’ and searching for a new job. Even for those happy to start the search, outplacement and coaching can help to polish off their CV and interview skills.

Financially, you can set a capped contribution for the support (so it won’t break the bank) which can be offered tax efficiently. Our Empowering People Group can provide this support – click here to learn more.

References and announcements

Agreeing on a factual reference and internal/external announcements means you can work with the exiting employee controlling the messaging around their exit and supporting them with their hunt for their next role.

Fast payment 

Promising speedy financial settlement payments means the exiting employee feels they’re in touching distance of the financial support, costing you nothing but helping the employee to manage outgoings.

Background

The employee posted a racist joke on their employer’s intranet – they apologised for their actions and also had a long, flawless service record. Regardless, the employer decided to dismiss them for gross misconduct. The employee claimed unfair dismissal. The initial tribunal found that anything more than a final written warning fell outside the band of reasonable responses because of the apology and service record.

The EAT disagreed and found that the dismissal was a reasonable response.

Practical takeaways 

Zero-tolerance – taking a zero-tolerance approach to racism or any other non-inclusive behaviour sends a strong cultural message as to what your business expects. The EAT made it clear that the approach is a reasonable response.

Reasonable response – this case doesn’t mean that all dismissals connected to racist acts will be fair by default. You’ll still need to show you considered mitigating circumstances and explain why you considered a final written warning to be insufficient in the circumstances.

Records and process remain important – clearly, if your decision-making process is flawed or you don’t have the records to show why you dismissed, the decision is likely to be unfair.

Making a cultural shift – if you’re inconsistent in your decision-making (you dismiss in one circumstance and not in another, for example), the decision will again be unfair unless you have good reasons for the different treatment (which are recorded). We’d recommend early advice to support with new documents, training and manager support if you want to adopt a different culture, perhaps one of zero tolerance. You must ensure all employees are on the same (new) page before holding anyone to account.

‘Without prejudice’ and ‘protected conversations’ can be used to protect exit negotiations but are often confused leaving you unknowingly exposed. Both have their uses! Here’s what you need to know:

Protected conversations

A better label would be ‘partially protected conversations’ as they allow you to discuss an employee’s exit with them without exposing you to claims for unfair dismissal. But, all other claims are fair game!

Be aware though – even the protection in respect of unfair dismissal falls away if there’s the suggestion you’ve behaved improperly and put the employee under undue pressure. So, there’s a place for them provided there’s no risk of claims beyond unfair dismissal.

Without prejudice

There has to be a dispute in play for this protection to work (so think grievance, informal allegations etc). Assuming there’s a dispute, ‘without prejudice’ conversations protect against all claims, including discrimination and whistleblowing.

The protection falls away if there is ‘unambiguous impropriety’ on your behalf so it’s not a magic answer to everything.

Take early advice 

Always speak with your employment lawyer before entering into settlement discussions – if early discussions aren’t protected effectively they’re hard to unpick. We’re here to help.

Increased penalty for illegal working

The Home Office has updated the ‘Employer’s guide to right to work checks’. Applying to any right-to-work checks completed on or after 13 February 2024, fines for repeated breaches of the right-to-work scheme have increased to £60,000 per illegal worker (the first breach is capped at a maximum of £45,000). The increased penalty doesn’t apply if you’ve ended any illegal working identified on or before 12 February 2024.

Gender pay gap reporting

The 04 April 2024 reporting deadline is approaching to submit 2023/24 reports (or 31 March for public-sector organisations). If you employed 250 or more employees on the ‘snapshot date’ (05 April 2023) you need to submit a report and base your calculations on payroll data taken on this snapshot date. You’re not legally required to provide a supporting narrative, but there are reputational benefits in doing so to create the context for your report and set out your action plan for closing any pay gap you might have. Click here if you want to discuss with us your approach to gender pay gap reporting.

Increase in long-term illness

Figures from the Office for National Statistics show that 2.8 million people are economically inactive due to long-term illness – an increase since the end of the Covid-19 pandemic. Maximising occupational health guidance, greater flexible working, and supporting individuals with caring responsibilities have been highlighted as key drivers to tackling long-term illness and encouraging individuals back to work. If you have an absent employee and you’re struggling to secure their return, contact us here.

Annual increase to tribunal compensation limits

From 06 April 2024 the following increases will take effect:

• A week’s pay (for the purposes of statutory redundancy pay calculations and calculating a basic award in the Employment Tribunal) will increase from £643 to £700; and
• The maximum limit of a compensatory award in the Employment Tribunal will increase from £105,707 to £115,115.

People diary dates – April 2024

05 – Walk to Work Day

01-30 – Stress Awareness Month

01-30 – Active for April