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Employment Law

Is protecting higher pay a reasonable adjustment?

Posted on: August 10th, 2021 by Ginny Hallam

If you’re making changes to a disabled employee’s role as a result of reasonable adjustments, a recent case has confirmed that you are unlikely to have to maintain their pay if the new role attracts a lower salary. 

Background

A teacher suffered from mental ill-health that amounted to a disability meaning she was unable to teach. She moved to a ‘cover supervisor’ role which had a lower rate of pay – her pay was eventually reduced to the appropriate level. She claimed her pay should have been maintained at a higher rate as a reasonable adjustment.

Practical takeaway

The decision confirms that protecting higher pay is unlikely to be a reasonable adjustment, supporting employers with the flexibility to pay the appropriate rate for the role being performed. Don’t forget though that you should inform the employee that you will be reducing their pay, explaining why you consider paying them more than the role attracts is not considered to be a reasonable adjustment (and keep a record of the conversation).

It’s worth considering a run-in period if the role changes quickly (where you maintain the higher salary for a short period) to allow the employee time to plan for a reduced salary. Make clear that the higher level of salary will only be maintained for a short period and at your discretion.

Get in touch if you need to discuss making appropriate reasonable adjustments. 

 

This update is accurate on the date it was sent (11 August 2021), 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.

Government response – consultation on sexual harassment in the workplace

Posted on: July 27th, 2021 by Ginny Hallam

The government has finally published a response to the 2019 consultation on sexual harassment in the workplace. Below is what you need to know:

Employer duty – the government will introduce a positive duty on employers to proactively take “all reasonable steps” to prevent sexual harassment. A definition of “all reasonable steps” has not been provided. Not only will the duty be enforceable by individual employees after an incident of sexual harassment, there’s the potential for standalone claims against employers paying lip service to the preventative measures they’ve introduced.

Third-party harassment – explicit protections will be introduced to protect employees from third-party harassment (by customers or suppliers, for example). Employers will have a defence to this type of claim if they’re able to show they’ve taken “all reasonable steps” to prevent it.

Extending time limits – the government will “look closely” at extending the time limit to bring a discrimination claim (changing it from three to six months). If this change is made it will likely be across all claims under the Equality Act 2010 to avoid potential confusion over time limits for different claims.

No timescale has been given on the introduction of these changes.

Taking a proactive approach to creating a positive and inclusive working environment doesn’t need to wait for government legislation. Clear policies, regular training and consistent communication will put you on the right track – get in touch for how we can support.

 

This update is accurate on the date it was sent (27 July 2021), 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.

“Childcare disparity” – new tribunal guidance

Posted on: July 20th, 2021 by Ginny Hallam

It’s still accepted by tribunals that women face a “childcare disparity”. This case is a reminder that employers may face successful discrimination claims if their decisions put childcaring females at a detriment.

Background 

An NHS Trust introduced a new flexible working policy requiring all employees to work some weekends. This employee was unable to comply because of her childcare responsibilities for her three children (two with disabilities). She was subsequently dismissed and brought a claim for unfair dismissal and indirect discrimination.

Practical impact of the Employment Appeal Tribunal’s (EAT) decision

This means that when you consider introducing a provision, criteria or practice (PCP) potentially putting those caring for children at a detriment, you should bear in mind that the PCP opens the door to possible sex discrimination claims based on the EATs guidance. Your choices are to adjust the PCP so that there is no such detriment or be ready to objectively justify it.

While the EAT case centres around the introduction of a flexibility policy, it’s often the case that employers are faced with decisions that may put those caring for children at a detriment. If you received a furlough request from a female when schools were closed and decided to operate a blanket refusal, you could have found yourself on the wrong end of a sex discrimination claim (for the reasons set out by the EAT) in respect of which you may have needed to objectively justify the PCP.

Intelligent Employment is here to help if you need guidance and support introducing new flexibility policies- find out more

 

This update is accurate on the date it was sent (20 July 2021), 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.

Detail you decisions – new tribunal guidance

Posted on: June 25th, 2021 by Ginny Hallam

A recent decision reiterates the importance of noting your reasons for dismissal at the time the decision was made. 

Background

An employer was reminded by the Employment Appeal Tribunal of the importance of evidencing the reason for dismissal at the time the decision was taken. The employee was disabled and argued the dismissal was for reasons arising from their disability. The employer was able to show through evidence that the dismissal was not connected to the employee’s disability and was as a result of an unauthorised holiday taken by the employee.

Key takeaways

Detail your decisions – the Employment Appeal Tribunal stated that having a clear and consistent paper trail to explain why a decision-maker acted as they did is vital.

Accurate allegations – allegations giving rise to dismissal must be precise. If an issue progresses over time, consider re-investigating to ensure any subsequent disciplinary action or sanction matches the allegations.

Securing great advice at the outset of any potential issue will ensure your processes and evidence trail are robust and effective. Get in touch to find out how we can help.

 

This update is accurate on the date it was sent (29 June 2021), 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.

Legal lightbulb – people law, policy, and practice

Posted on: June 17th, 2021 by Ginny Hallam

As part of keeping you in our focus, our ‘legal lightbulb’ update ensures you’re on top of the latest changes in legislation, case law, and people trends.

No legislation to prohibit ‘fire and rehire’ 

The future of ‘fire and rehire’ when dealing with contractual changes was in doubt, but following an Acas ‘fact-finding’ paper, the Government has confirmed that it will not introduce legislation to prevent employers from dismissing and re-engaging employees as a means to change their employment terms and conditions. It is still the most ‘nuclear approach’ and should be tackled with robust advice given the potential risks (unfair dismissal and discrimination claims, to name a few) but it’s good to see that the option remains. Click here if you need our support on changing terms and conditions.

A trip to the pub whilst off sick? 

Although a recent tribunal decision held that dismissal of a sick employee spotted in a pub was unfair, it’s simply another reminder to get your processes right. The dismissal was held to be unfair due to the employer’s flawed investigation. No written accounts were made, no witness statements or medical evidence provided, the disciplinary policy made no reference to ill health, and the investigation officer also led the disciplinary meeting.

John Lewis’ proactive practices

The retailer is set to be the largest in the UK to provide 26 weeks’ equal paid parenthood leave for all employees, irrespective of how they become a parent. Part of a range of new support for employees including two weeks’ pregnancy loss leave, a ‘Flexible First’ policy with vacancies to be advertised with flexible working, and more! Find out how to access our agile working policy and support with flexible working.

Real-life reasons to deal with discrimination

Celebrating Pride Month reminds us of the importance of championing inclusivity and diversity. Over the last 12 weeks of updates, we’ve reflected on the employment laws connected to diversity. If you’d like to revisit anything we’ve covered to help manage an evolving diversity conversation, you can find all our insight here. Get in touch if you’d like to know more about our equality, diversity and inclusivity training.

 

This update is accurate on the date it was sent (17 June 2021), 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.