Keeping up to date

Background

The employee’s menopause symptoms meant she began to struggle to meet usual performance standards. She accepted an offer to move to another role (at a lower salary) but again struggled with performance, with ‘confidence issues’ being cited. She was threatened with disciplinary action if her performance didn’t improve.

An occupational health report advised that her symptoms probably amounted to a disability and suggested eight reasonable adjustments to support her. Despite this, her employer issued her with a first-stage warning with a “success plan” and failed to make the adjustments suggested. She resigned and brought a claim for failure to make reasonable adjustments and disability discrimination. The tribunal agreed and awarded £23,000 for injury to feelings, £2,500 for aggravated damages, and over £30,000 for loss of past and future earnings (plus interest).

Practical takeaways

Policy – introducing a menopause policy will help to build a more open culture of understanding to support those affected. It will also help guide situations like this and ensure those involved are clear about their responsibilities.

Training – a great policy often fails without training. Did you know 77% of businesses don’t train their line managers about menopause? Training colleagues helps them to approach conversations with confidence and ensure they are respectful of the law and the individual’s needs.

Understanding – every individual is different. Securing expert support (an occupational health report in this case but other options are available) means you’re equipping yourselves with the tools to deal with the situation appropriately.

Actions – it’s no good having a great policy, delivering training, taking expert views and then ignoring it all. You need to show you’re respectful of your own policies, follow the training you’ve given, embraced expert opinion and then delivered a course of action in line with legal and business requirements.

Advice – early advice means legal and cultural goals can be achieved and avoids ‘unpicking’ legal breaches (if possible).

Objective, measurable selection criteria – if not, it’s likely to result in an unfair dismissal. Ensure that you consult on the selection criteria that you’d like to use so that each individual has the opportunity to have their say before scoring starts. Click here for our suggested selection criteria.

Avoid discriminatory selection criteria – if it’s based on length of service, absence or flexibility, it could be considered discriminatory based on age, disability or sex respectively. Ensure that you make adjustments so that the criteria do not prejudice those with protected characteristics, or avoid using them entirely.

Fair scoring – ensure that your selection criteria feature on a scoring matrix with clear parameters. Ideally, ensure that any score is justified with evidence as to why it has been awarded.

Verification of manager scores – ensure a manager with the ability to find evidence or measure the individual against the selection criteria carries out the initial scoring. Get another manager to verify their scores (preferably one with knowledge of the employee).

Consult about scores – individuals have the right to know their scores, as well as being given evidence supporting the scores and the breakpoint they had to achieve to avoid redundancy. They can challenge their scores, possibly resulting in re-scoring if there is merit to their objections.

Inappropriate communications may result in harm to the individual and claims for fundamental breach of contract, harassment or even personal injury. Here are our thoughts on what appropriate communication looks like.

Identifying the trigger – understanding why an employee is absent is hugely important. If it’s work-related, there may be something that you can do to address concerns and support a return to work. If absence is linked to a longstanding health condition, it may amount to a disability meaning contact should be adjusted according to expert medical opinion so as not to exacerbate the condition.

Listen to medical opinion – if the employee is telling you that they’re not well enough to enter into conversation with you, an expert medical opinion will help you to understand what contact would be appropriate to ensure that you don’t make their condition worse or slow down their recovery.

Create a well-being communication plan – set out in advance the communications they can expect from you, the different communication options available, and who you will contact if they’re not well enough to discuss their mental health with you. To find out how to access our template well-being communication plan, click here.

Offer alternatives – be flexible with how you keep in touch. Offer to conduct conversations via telephone, video call or even written correspondence. Consider extending the right to a companion, friend or family member – providing they’re not a lawyer!

Give your managers the tools – running training workshops allows managers to practice what to say and how to say it in a safe environment. Providing your managers with guidance notes will help them frame their communications, and how and where they should be keeping a record. To find out how to access our template manager guidance notes or for details of our manager training sessions, click here.

Here are our thoughts on the proactive role mental health champions can play and how to set them up for success.

Create clarity – be clear about what the role involves. Create an internal advert and role profile. Reassure them that they’re not supposed to be therapists or psychiatrists. They’ll need to be caring and compassionate individuals who can help to proactively promote mental well-being, provide non-judgemental confidential support and signpost 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’. Ask employees to apply and choose people that are passionate about supporting you to develop and promote well-being initiatives and willing to give their time (with manager support).

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. To find out how to access the template letter confirming an appointment to a mental health champion role, click here.

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 well-being to help shape and influence your well-being strategy and initiatives.

Give them the tools – whilst they don’t need to be medical experts, it’s crucial they have an ability to identify a colleague in need of expert support and a good understanding of how to approach the situation should it arise.

In this update, we’re looking at how you keep a pulse of ‘how it’s going’ and support employee well-being where it’s needed.

Taking your teams’ pulse – engagement surveys; simple, but effective. They don’t have to be long or complicated but asking your team ‘how it’s going’ on a regular basis is a great way to identify if someone is struggling and gives you the opportunity to proactively support. 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 well-being is a two-way conversation. Even if a survey is anonymised, employees 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 – whilst we’re definitely seeing more of a shift back to office-based working, we shouldn’t forget the impact of remote working and the barriers it can create to effective communication. Encourage teams to make the most of face-to-face meetings and video calls where possible (stay off emails and the phone if they can).

One size won’t fit all – what worked for one person might not work for another. Actively listening to concerns and caring personally about finding a supportive solution for their needs goes such a long way. Don’t forget to remind employees about any Employee Assistance Programmes you might have or signpost them to external resources that can provide financial, well-being and other support.

Record long-term sickness absence

2.5 million employees are reported to be on long-term sick leave in the UK. We know statistically and from our own experience that the longer an absence persists, the less likely an employee is to return to work. Simple steps can help support employees back to work:

• A clear absence policy supports managers and employees to understand expectations and when intervention can be expected
• Balanced, proactive communication ensures the employee feels informed and understands next steps
• Welcome back meetings (some call them ‘return to work’) ensure the employee understands the support available and the next steps if there is further absence
• GP or occupational health support provides medical insight and support (provided their involvement is requested appropriately).

It can sometimes be tricky to know what options are open to you when managing long-term absence, we’re here to help.

ACAS guidance on whistleblowing

ACAS recently published new guidance on whistleblowing for employers and employees. It’s not always clear if an employee has ‘blown the whistle’ and can be tricky to understand your options (again, that’s what we’re here for). The new guidance provides a helpful breakdown and practical examples of:

• Who is protected by the law on whistleblowing and when it applies
• Legal protections from detriment
• The type of disclosures protected
• How employees can make a disclosure and how you should respond
• What your whistleblowing policy should cover (we have one on Intelligent Employment here)

People dates for your diary – September 2023

18 | International Equal Pay Day

18-22 | International Week of Happiness at Work

25-29 | National Inclusion Week

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 or job descriptions for the same roles, have job titles and job descriptions not kept up with the roles individuals are actually doing? This all needs to be considered.

Identify individuals carrying out the pooled roles – do a number of individuals interchange between different roles? In which case would it be reasonable to include those individuals within the pool?

Consider individuals at other sites – 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 – bumping occurs when 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 – once you’ve decided on your pool, you’ll need to ensure that you discuss the pool with ‘at-risk’ individuals before going ahead and applying selection criteria. A fair redundancy process includes giving individuals the right to challenge the pool before scoring ‘at-risk’ individuals.

It’s not what you say but the way that you say it – never truer than in respect of your people policies. Here are my top tips…

Choice of words – straight-talking and plain-English. Engaging and clear language will immediately create a more accessible document and something employees actually want to read. Did you know, around 60% of employees will avoid reading your handbook?

Inclusivity – make sure to drop any-gendered or non-inclusive language so that you’re creating universal appeal.

A feast for the eyes – illustrating processes with flowcharts or getting your message across with images or graphics can really help to break up what are often text-heavy documents.

Layout – setting out your policies so they align with the employment journey will help to make them easier to navigate.

Tech – there are almost endless possibilities with tech to help create something unique. Whether that’s incorporating video-based content to deliver key messages or building something interactive and tactile – the sky’s the limit!

Employees will still need to have 26 weeks’ service before they’re able to make a request. However, the Act does bring in several changes to how you manage requests.

What’s changing?

• Employees can make two flexible working requests each year (instead of just one);
• You have to deal with requests within two months (instead of three);
• You need to ‘consult’ with employees before refusing a request – unhelpfully, no definition of consultation has been provided at this stage;
• When making a request, employees are no longer required to explain how any challenges resulting from their proposed flexible working arrangement should be dealt with.

What’s not changing?

• Employees still need 26 weeks’ service before making a flexible working request. However, we expect the day-one right to come at a later stage through secondary legislation;
• The Act won’t introduce a legal right to appeal if a request is rejected (although ACAS recommend doing so in their Code of Practice on handling flexible working requests).