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August 2023 Newsletter

Calendar August 29, 2023

HR Professional asked to do the laundry following maternity leave awarded £18k, for injury to her feelings

Updates in Employment Law in August

Case of the month: Messum v Bradford Management Services Ltd
In the case of Mrs Messum v Bradford Management Services Ltd, Mrs Messum was employed by Bradford as an executive HR assistant. She was highly qualified and was valued by her employer. However, after she became pregnant, her boss stopped talking to her and became angry and questioned her performance. He asked her to undertake physically demanding tasks in the warehouse and she became unwell and was signed off work due to pregnancy related fatigue and stress.

During her sick leave, the employer summoned Mrs. Messum to an investigatory meeting without specifying details about the matter. Her illness prevented her attendance, this was supported by a doctor’s note. In response, the employer commenced her maternity leave and postponed the meeting, displaying a lack of consideration. Months after giving birth, Mrs. Messum received another letter demanding attendance at the investigatory meeting, threatening disciplinary measures. She declined due to childcare commitments, prompting the employer to propose a home meeting. Despite explaining her situation, the employer persisted. Mrs. Messum filed a grievance regarding her treatment, but no response was received.

Upon returning to work, she attended an investigatory meeting where she was accused of theft. She defended herself, mentioning previous permission to take food home. Nevertheless, she received an undeserved verbal warning that she unsuccessfully appealed. Her HR duties were reassigned, and she was instead asked to process sales orders and, later on, to do housekeeping duties – including laundry. She protested to no avail and eventually resigned, citing unfair dismissal, pregnancy/maternity discrimination, and harassment.

The Tribunal found that the company’s actions had undermined the implied duty of trust and confidence by requiring her to attend an investigatory meeting when she was off work, not telling her why it wanted to investigate her, not providing evidence to support allegations that she had stolen food, issuing a verbal warning without holding a disciplinary hearing, and by delaying dealing with her appeal and grievance. In addition, their relationship had been fundamentally damaged by changing her duties. In light of the verdict, Mrs. Messum was awarded £18,000 for emotional distress, with an additional 25% uplift due to non-compliance with ACAS guidelines, along with interest totalling £28,000.

This case serves as a reminder of the importance of maintaining fair and respectful treatment of employees, especially during life-changing events such as pregnancy and maternity. Employers are advised to adhere to legal guidelines and uphold a culture of inclusivity and equality in the workplace.

Government abandons legislation that would have protected workers from third party harassment – The Worker Protection (Amendment of Equality Act 2010) Bill
Current laws can make it tough for employees to address harassment from customers or outsiders at work. There used to be special protections in the Equality Act 2010, but those provisions were repealed in 2013. That looked set to change. A new bill, the Worker Protection (Amendment of Equality Act 2010) Bill, is currently being discussed in parliament, and as originally drafted, would have made employers liable if their staff were harassed by third parties unless they could establish that they’d taken all reasonable steps to prevent it. This element of the Bill was controversial. The House of Lords worried it might limit free speech and impact opinions. Much of the debate centred on hospitality staff and how the Bill could adversely impact employers whose staff might overhear comments and opinions they disliked and/or found offensive.

The Bill was re-drafted to make it clear that employers wouldn’t be responsible for the harassment of staff, by people it didn’t employ or control, unless their comments were targeted at their staff. That was not enough to assuage these concerns and, in order to the avoid the whole Bill failing, the third-party harassment provisions have been completely removed. In a recent talk in the House of Lords, a member of the Labour party asked how the government will protect workers from harassment by outsiders. She said this affects more than just shop or restaurant workers and includes health sector workers dealing with the public. The government didn’t answer that question directly and the Labour peer indicated that it might revisit this issue when it is in government. So, things could change – but not for a while and possibly only if we get a change in government.

The remaining parts of the bill dealing with sexual harassment will still go ahead, presumably next year, with a few small adjustments. We will keep you updated as changes develop.

New law brings fairness to the table: Staff must receive the tips they’ve earned
There have been numerous reports over the years, of employers taking a proportion of employees’ tips to meet their own costs or increase profits. These issues came to light in 2015 following evidence that around two thirds of employers in hospitality were making deductions from staff tips, in some cases of around 10 per cent. Trade unions and other campaigners called for legislation to ban “unfair” tipping practices, and, in response, the government introduced a Voluntary Code of Practice. Although there has been some improvement, the government estimates that deductions of between 3-5% are still commonplace.

The Employment (Allocation of Tips) Act 2023 (once enacted) will amend the Employment Rights Act 1996 to impose new legal obligations on employers to pay staff 100% of the tips they receive from customers.

Read more about this in our latest blog here.

Illegal working civil penalties set to triple from 2024 up to £60,000
The Home Secretary has announced that fines under the right to work scheme will triple from the start of 2024. The Home Office also intends to consult on strengthening sponsor compliance action where illegal working is found. The civil penalty for employers found to employ an illegal worker will raise from £15,000 to £45,000 for a first breach and from £20,000 to £60,000 for repeat breaches. These measures are stated to be ‘the biggest shake up of civil penalties since 2014,’ and ‘form part of the Home Office’s wider strategy to combat illegal migration to the UK.’

In the coming year, the Home Office will also launch a consultation on options it is considering on more stringent compliance action against Points-Based Immigration System sponsors who have been found employing illegal workers. There is a separate criminal offence where an employer knows or has reasonable cause to believe that they are employing an illegal worker. The offence carries a maximum sentence of five years’ imprisonment and/or an unlimited fine. An individual who works illegally also commits a criminal offence, which is punishable through up to six months’ imprisonment and/or a fine. Their earnings may also be confiscated as proceeds of crime.

Employers should act now to bolster their right to work checking processes to minimise the risk of incurring penalties and being subject to sponsor compliance action.

New government consultation launched on occupational health
Last month the government released a new consultation called ‘Occupational Health: Working Better’ inviting views on a number of questions aimed at improving access to occupational health (OH) services. Whilst the consultation was largely unexpected, there are very good reasons for this to be an area of focus for the government. The facts supporting the consultation are striking. Long-term sickness is now the most common reason given by working people for economic inactivity. Recent data reveals that the proportion of people who are economically inactive mainly due to long-term sickness has risen to 2.55 million. The journey to economic inactivity frequently starts with missing work due to illness, and the consultation cites record-high figures of 186 million workdays lost due to sickness or injury in 2022 alone. The consultation also reports that only 45% of workers had access to OH services through their current job.

As a result, the government aims to increase employer take-up of OH services, as well as improving availability, to prevent ill health turning into job loss and economic inactivity statistics. The consultation covers three main ideas:

1. Introducing a national “health at work” standard for employers with a baseline for quality OH provision to all employees.
2. Examining the steps taken internationally to increase OH coverage and learning lessons from successful UK-based employer models.
3. Developing OH workforce capacity to meet increased demand for their services.

Whilst we will need to await the outcome of the consultation for any confirmed changes, some employers will be heartened to learn that the government is looking at providing additional tax incentives which may enable them to afford to use OH services more widely, or at all. The many employers who have received unsatisfactory OH reports that either raise more questions than they answer or lack specific workable recommendations will also welcome a baseline for quality OH provision. Often due to poor experiences with OH, some employers see the service as a tick box exercise in managing long term sickness absence and limited to a procedural step. A quality OH offering as a minimum may help employers see that there can be real benefits to engaging with the process.

Government announces new plans to reform paternity leave and pay to benefit fathers.
The government has recently issued its response to the 2019 consultation regarding Parental Leave and Pay and has made a commitment to implement modifications aimed at encouraging fathers to play a more active role in caring for their newborns.

Currently, those who qualify for Paternity Leave and Statutory Paternity Pay (SPP) can take either one week or a continuous block of two weeks of paid leave. This leave and pay must be used within the initial eight weeks following the child’s birth (or adoption placement), with special considerations in cases of premature birth.

To enhance flexibility for fathers, the government plans to introduce additional regulations that include the following changes:
Fathers can opt to take their two weeks of leave in two separate one-week blocks.

  • Employed fathers will have the option to utilize their Paternity Leave and SPP within a year of their child’s birth, rather than being limited to the first eight weeks.
  • It’s important to note that no adjustments will be made to Shared Parental Leave or Unpaid Parental Leave.
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    By Suraj Purohit.
    Employment Paralegal at Kalra Legal Group


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