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Employment News and Announcements From 2020

Employment Related Articles, 2020 Archive

Check out our past employment law related news and announcement, including work related articles below. Historic events may still be relevant to your current employment situation or personal circumstances.

Articles written by Stephen Pinder, Employment Law solicitor and Karen Ogden, paralegal and legal secretary.

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I suspect that before Covid struck in the UK in March furlough was not a word commonly associated with the world of work. It is now. Only this morning I heard a news item confirming that 1 in 13 workers had spent time on furlough over the last 7 months, and furlough ends on 31 October. The money spent on furlough was to preserve jobs when businesses had to close through lockdown, and the scheme has evolved as the economy opened through the summer. The national and straight forward scheme is being replaced by a less generous scheme, originally designed to support a return to work for at least some hours. The obvious flaw in the scheme related to business which were unable to offer work on a viable basis and this was changed as the three tier scheme was imposed. If you work in a bar in Liverpool there is no point in paying if a fixed proportion of hours are worked if you have to close the bar as a matter of law.

I have already advised some of those on furlough who have lost money(remember the 80%) and allegations have been raised over allocation to furlough based upon discriminatory factors such as being disabled or pregnant. As at 1 November my belief is that many businesses will struggle to bring staff within the new scheme and the sad legacy of furlough may be that businesses have remained open only to retain staff funded by furlough, and there will be tough choices to make.

Amongst this uncertainty I expect that Pizza Express will not be the last company to declare redundancies this week. Any worker who believes that they have been treated unfairly should seek advice. This may relate to a lack of consultation or selection for redundancy, or a case over alleged discrimination. Some employers have used settlement agreements to reduce the workforce. Remember independent legal advice for a settlement agreement is paid by the employer in almost every case.

This may be amongst the hardest times but don’t let your employer add to the trouble by getting away with unlawful actions, take advice and protect your rights.

I had reason earlier to question whether a person should be ready to deal with potential legal problems or even to take legal advice. I had an interesting early morning watching the US election coverage on various TV channels. A common reference was being made, and has over recent days, to both Trump and Biden being “lawyered up” and ready to deal with legal challenges in relation to the election. Indeed, on the BBC news reference was made to teams of lawyers being dispatched around the country, the mind boggles as to where they are now in the US, waiting at a court, sitting in an office drinking coffee, who can say.

I sense that those referring to having access to legal advice are doing so, raising the prospect of lawyers working for their clients in a slightly negative way. In the UK we have had both Johnson and Patel referring during the recent Tory Party Conference to interfering lefty lawyers, who have the audacity to challenge Government decisions on behalf of their individual clients. By more than implication the politicians are content to have Government represented by the national legal service, but somehow it is wrong for those on the receiving end of Government decisions to have access to competent legal representation.

In the UK we are entering a time of great uncertainty arising from the virus and another lockdown. The consequences for businesses and employees are predicted to involved job losses, loss of earnings and other disputes. Only this week I have had several phone calls mainly from redundant workers, wanting to challenge the fairness of their selection for redundancy. The statistics confirm that across many workplaces employers and workers are under pressure, in reality due to an inability to trade and the impact of 8 months of stagnation.

Against this background there will be many problems to address in each area and for different industrial sectors. Employment law involves legal cases with very short periods to bring a claim, usually only 3 months. If you are an employer or particularly a worker involved in a legal dispute at work without representation or advice from a union, isn’t the real question for you, why are you not “lawyering up” to deal with your current or future workplace disputes and claims?

Having access to best advice is not wrong, it is what you would tell someone else to do. Always take best and expert employment law advice.

Earlier this week I read that certain legal groups are asking for the definition of a hate crime to be extended to include discriminatory comments spoken even across the dinner table in a private house, arising from a Law Commission consultation report. There is an obvious issue about proving what may have been said and how reports will be made, but the principle seems straight forward. If a group of people are exchanging views and one or more people make statements which in a public forum could be a hate crime, the situation should be open to investigation in the same way in a home environment.

Specific reference has been made to statements about race, religion or sexual orientation leading to a potential criminal label, included in the 500 page report to be presented to ministers. The Scottish government is already considering the imposition of hate crime measures in private dwellings. There has been an inevitable reaction based upon the right to freedom of speech and expression, including the human rights of both parties involved. It would be something of a disappointment for robust exchanges of opinion to be constrained by threats of criminal proceedings. We can all probably think of obvious examples of words which could be hateful and actionable, but there will also be many statements which could be upsetting but can they really be identified as criminal. The right to upset others should not always of itself be seen as criminal, involving as it does a substantial degree of subjectivity.

It does appear that this issue will run, and could easily form part of our future legal framework. Whilst hate crime is important and should be eliminated, it must be crucial to ensure that any new legislation is carefully drafted and investigated in a sensible and sensitive manner. Are our police and courts resourced to deal with a growth in this type of case, and will we become a people who really only ever talk about the weather and our least favourite football teams.

I have had cause many times to advise clients in relation to a settlement agreement. They arise in different ways, and I have had several calls this week which might lead to a settlement agreement being required.

An employer and an employee each have the right to propose a deal over an employment dispute and such a deal would be recorded in a settlement agreement. This week a new client asked me to negotiate an exit package using a private conversation, because after 12 months he remains off sick and unable to return to work because of a dispute with a manager. The private conversation provides a without prejudice forum for negotiation, and frequently on both sides can be very useful as a way of breaking the deadlock on the most difficult problems.

Over recent weeks I have received allegations of wrongdoing associated with furlough arrangements and of other direct discrimination, so that having the chance to air a grievance on the private basis allows offers and counter offers to be considered, knowing that what is discussed should never be considered by an Employment Tribunal. A private conversation is designed to ensure a level of privacy, and a deal can include a wide range of flexible terms such as to confidentiality.

Many individuals are presented with a settlement agreement and will need advice about the proposed terms, for example over a redundancy payment. For both employers and employees a settlement agreement can also be seen as the end of a private negotiation to resolve sensibly often complex workplace disputes. As an alternative to Tribunal claims and the consequent issues and cost, in the right cases this must be worth exploring.

Liverpool was already under the most severe of lockdowns, but as a further and more stringent lockdown was introduced last Thursday plunging us all into more uncertainty, it is inevitable that these additional restrictions will only serve as a further detriment to already struggling companies. Even with the new furlough arrangements, you will have seen from the press the substantial number of mass redundancies announced over the last 7 days.

It is worth remembering that although we all face very challenging times in workplaces an employee still has rights, including the statutory right to be consulted over planned collective redundancies. If you are one of more than 20 employees who is or has been made redundant without consultation, it is possible that you may be able to pursue a claim for a protective award for up to 90 days of pay as compensation. Even if your employer is insolvent, it is possible to receive up to 8 weeks pay, which is paid from the National Insurance Fund. There are no hidden costs. We act on a no win – no fee basis. You would only pay a fee for our work if the claim is successful in a Tribunal or a settlement is negotiated and you receive compensation.

We also deal with other types of employment matters e.g. unfair dismissal and discrimination claims. Different funding options are available, from no win – no fee agreements, which is the preferred option of funding, to agreed hourly rates and fixed fees. All options will be discussed relevant to the advice and assistance needed. Remember, action needs to be taken quickly, within 3 months of the act complained of.

When we first went into lockdown in March, homeworking was meant to be a temporary solution with many of us packing up our laptops and heading home.

Eight months on and the majority of us are finding that homeworking is becoming a more permanent solution, with many of us considering the kitchen table or even a foldaway table our “office” workspace. The majority of home workers now have numerous technological devices to be able to carry out their daily job functions, but how many of us are actually working in an environment which is potentially dangerous.

I think most of us can say that their plug socket is being “well used”, together with extension leads winding their way round the room; and how many of us are balancing our computer screens on a stack of papers or books?

Whilst people may find there are advantages from working from home, be it for travel reasons or simply to tap the snooze button a few more times, how many of us can say that they have been provided with the correct and proper advice and equipment to enable us to work safely from home.

It must be remembered that your employer still has a duty of care to mitigate and ensure you have the correct equipment, and provide a proper and safe guide to homeworking. If you consider that your employer is failing to follow the basic guidelines for safe homeworking, please give us a call for advice and assistance.

The Covid 19 pandemic has resulted in many consequences, including health, economic and in workplaces. A significant number of workers have been working from home since mid-March 2020 and many employers have directed their employees to accept homeworking as the normal way of working. There are obvious reasons for employers to adopt this approach, and the cost saving is clear. The consequences for commercial property businesses will in my view lead to major changes in cities and towns,

and has the potential to see commercial districts becoming ghost towns. The pursuit of the homeworking outcome for businesses does not appear to be dictated by the current lockdown. Some banks announced several weeks ago a plan to have staff working from home until at least the spring. It will need a good long-term plan to manage this new work norm, with a focus upon health and safety and management of staff, including well-being. It is clearly more difficult to know what staff are doing if they work on a remote basis, and for data sensitive businesses there is a constant need to protect confidentiality of clients and data subjects. I am yet to see how this will work in the long term, but a compelling way to lower costs may hold sway across many industrial sectors.

In a new study and report The Woolf Institute has also identified the potential negative impact caused by homeworking when assessing degrees of tolerance in society. As workplaces are remote, there is less opportunity for people of different social and racial groups to mix regularly, and for example to forge teams together, and to work to solve problems. The Report has identified a lowering of tolerance, and other places for people to mix have also ceased to fulfil that role, eg bars, leisure centres and the like. Co-workers might work together and at the end of a day go out socially to a bar or restaurant. Barriers are broken down, and friendships are forged outside of what might be a person's normal social group. Working at a dining table alone is not quite the same.

This situation may in the medium and long-term cause prejudice, and a lack of opportunity, as well as forming walls between different social and ethnic groups. What seems to be a straight-forward work instruction may have broader consequences, which are negative for employers and their workers, and for society it may sow the seeds of intolerance, eliminating advances achieved over many decades. Developing a tolerant society is not only about legal developments such as The Equality Act, and saving a few pounds off the bottom line may not be as profitable tomorrow as it may appear at first glance today.

On the morning of 17 November, a report was described by Zurich insurance in relation to recruitment of new workers. During the pandemic they have adopted home working arrangements but importantly they have gone much further for new recruits.

There has been a focus on three particular areas and the results have been striking. The company has assumed that new posts will provide an opportunity for employees to speak to line managers about working flexibly, working part-time, and considering job share.

Flexible working can make provision for an employee to work at times to suit personal demands, but still on a basis to get the necessary work done. For example, an employee might have care commitments during the day, and may have time available in the evening or at another time which suits both parties. Similarly, a flexible working approach could involve the employee being able to engage with colleagues and clients on a remote basis, and not requiring the employee to engage in travel for in-person meetings.

Part-time work involves an employer accepting that what might be described as standard hours are not a necessary ingredient of a good working relationship. Part-time hours might also be part of a flexible working relationship, so that an employee might need to work reduced or variable hours at particular times of year, such as during school holidays.

Finally, Zurich have engaged in a positive way when thinking about job share. During the radio interview it was put to the Zurich representative that this could be a disaster, but instead the response was to reflect upon the benefits of a job share, and the fact that any work plan was adopted only after discussion and agreement.

So what of the benefits. Firstly, there has been an increase in positive engagement amongst the workforce. Secondly there has been an increase in recruitment of women across the organisation, and thirdly there has been a significant increase in recruitment of women at a senior level. The result was to address the gender pay issues within the business, not by any creative accounting, but rather by a recruitment strategy which has attracted new staff keen to do well and given an environment in which they can flourish.

Home working has brought many challenges, but it seems that even a large company like Zurich have been able to reach out to candidates and to take the business in a direction to meet the needs and aspirations of a whole new workforce. For both parties there are obvious benefits.

There is no doubt that the Pandemic has taken a significant toll both on businesses financially and on people's well-being and mental health.

Is the answer that, in order to boost peoples' well-being and mental health, a four-day working week is introduced?

It has been suggested by MPs and trade unions across the world that a four-day working week would help us recover from this global crisis. This has included positive comments from Unite General Secretary Len McCluskey.

Controversial some would say, however this would indeed boost people's morale significantly, especially if the idea of a four-day working week meant no reduction in pay!

However, it must be borne in mind that with a reduction in working hours, there is inevitably going to be an impact on the economy financially. If we all decided that a four-day working week was the way forward, we would obviously be working fewer hours, but with that comes a likely reduction in the output of services and goods produced by businesses. A positive outcome would possibly arise by reference to greater productivity in 4 days, more leisure time to spend on hospitality businesses, and an inevitable need to recruit additional labour, reducing unemployment and increasing tax payable to Government.

It may not be such a distant dream, but should not be to the detriment of the economy, especially in a time when the Pandemic has already had such an impact on all both personally and financially. Could a more pragmatic approach also be adopted; a five-day working week condensed into four days in an effort to help boost peoples' well-being and mental health?.

We may all be happier with the thought of a shorter working week, but would we be poorer as a result in the long-term? This issue needs further analysis but it could be a way forward, particularly to balance the interests of the unemployed and the over employed.

We expect an announcement later today in relation to the PM`s decision over the behaviour of his Home Secretary Priti Patel. As usual with this Government we are receiving important information in advance through leaks to the press, and everything points to some type of half-baked apology and a ticking off for having breached the Ministerial Code of Conduct in relation to the way in which civil servants are treated in the performance of their duties.

The leaks include a reference to an acknowledgement that Ms Patel broke the Code and was a bully, but that she apparently did not intend to bully her staff in this way. I am familiar with bullying situations in the workplace from many cases, with individuals in positions of power coercing others to work in a particular way, being critical of them without cause, or putting them under pressure to adopt opinions or positions on work issues to suit the bully.

I recognise that managing staff and running an important Government department will bring pressures, but many other politicians have held the post of Home Secretary and have not been found to be a workplace bully. The decision maker in this situation is the PM and Mr Johnson has an obligation to uphold the Code as the Minister for the Civil Service. That post is held by the serving PM for the very reason that the many thousands of civil servants do their best for all Governments on a day-to-day basis, and they are entitled to be treated in a proper manner.

If the PM does attempt to brush this under the carpet it will send a message to managers across Government as to what behaviour is now acceptable, and the impact may extend beyond the civil service. How many managers have overstepped the mark and replied with the comments....I didn`t mean it, or I didn`t know you were upset. The whole point about holding a senior position is that a manager such as Ms Patel should be able to control herself, and usually the concept of bullying is considered from the perspective of the victim, not simply the retrospective viewpoint of the bully.

The report about Ms Patel does I understand consider her conduct across three departments, worryingly it is not simply about a particular pressure situation in one work area. This suggests a regular pattern of failure and it should now be addressed. The PM must in my view look at the full picture and make the “right decision”. Sadly, I expect the contrary and it is no shock to learn that Ms Patel`s former senior adviser is currently engaged in pursuing a complaint of unfair dismissal to an Employment Tribunal. No doubt more public money is being spent because of Ms Patel`s misconduct.

Many of us at some point in our working lives, have been subjected to some kind of discrimination in the workplace. However, how many of us have been discriminated against because of our “hairstyle”, leading to unwanted and sometimes hurtful comments.

Few may realise that hair may be relevant as part of the protected characteristic of race or other circumstances such as age, and it can be unlawful to discriminate against a person because of their natural hair and texture. Some employers may consider traditional black hairstyles to be inappropriate and unattractive in the workplace, leading to employees changing or being asked to change their appearance to “fit in” in the workplace.

Our own natural hair is a part of who we are and should be celebrated, and no one should be made to feel that their natural look is unacceptable and unprofessional in the workplace or anywhere. We should not be made to alter and change our hair to “fit in”, we should be proud to embrace this. We each have our own natural style, and this should not be a negative when applying for jobs. Is a person with soft flowing straight hair more aesthetically pleasing than a person with afro hair? Does this detract from their ability to perform their duties? We should be judged on our talent and abilities and not on our “hairstyle” alone.

Only this year, a young schoolgirl was constantly sent home from school because she had afro hair, with teachers stating that this was against uniform policy and also blocked the view of pupils from seeing a whiteboard! To discriminate against a young girl for proudly wearing her natural look and not conforming to society’s views and pressures to straighten their hair is unacceptable.

As a further example, an employer being critical of an older person having grey hair, or even a person with thinning hair, should not be acceptable as it may discriminate on the grounds of age.

This concept has been backed by Unilever, who have confirmed that they will be backing the “Halo Code”, a celebration of natural hairstyles, protecting employees in the workplace from race-based hair discrimination.

Racial discrimination relating to natural hair has already been banned in schools and the workplace in California, with New York following suit. As such, new legislation means that discrimination against students and employees is now illegal in those jurisdictions.

Each and everyone of us should remember that who we are is what makes us and changing a natural hairstyle to suit someone else’s needs and views is unacceptable as direct discrimination and harassment.

We have already seen the reaction to the first pictures of British citizens receiving the first dose of the Covid vaccine. Time for celebrations, now we have a V-Day, not VE or VJ Day, and the momentum is all behind us all agreeing to be vaccinated, it is almost becoming a matter of public duty. There will be many reasons why individuals may decide not to receive the vaccine, and one approach must be to conclude that the decision on this matter must be a matter of personal conscience.

I have heard the Government ministers at press conferences asked about the consequences of not opting to have the vaccine jab. This has included the possibility of having unfettered access to certain places and activities, and answers have been unclear, at times suggesting that there may be incentives to have the vaccine. I have also read about the idea of a vaccine card being needed to go into say a cinema, a football match, or to take a flight. Many private businesses may decide that ensuring that their customers have had the vaccine will reduce risk of infection, thereby enhancing the chance of staying open, and even reducing insurance premiums.

It is of interest that Liverpool has been asked to run another pilot scheme, with more than 25 businesses signing up to offer discounts to customers in shops and restaurants, and visitor attractions if they produce a negative coronavirus test. Is it too far from that point to see that repeated with evidence of having had the vaccine.

What then of the world of work. Employers have a responsibility to protect the health and safety of employees, and that might involve working from home, social distancing, wearing masks, sanitising gel, and regular cleaning. Imagine if an employer insisted upon employees working from an office environment but stating that employees could only return if they had proof of having received the vaccine. The alternative might be to dismiss employees, or to keep them on permanent suspension with or without pay until the virus is fully under control.

The idea of taking this stance would in my view be difficult for employers. There are cases when employees cannot receive the vaccine, including pregnant women, and people with certain underlying health conditions including allergies. Similarly, there will be employees who would still be taking a risk in attending at work with the vaccine due to health related vulnerability.

As regards possible legal issues, I can foresee Tribunals taking a strict view of this issue, requiring employers to have the highest level of justification to adopt such a position, noting the other methods of ensuring safe working conditions, including regular testing which becomes increasingly available. Further, some disabled employees would be able to raise disability discrimination claims, and some opposed to the vaccine will rely upon their philosophical beliefs to justify their decision not receive the jab. If unfair dismissal claims are also difficult to defend the legal landscape may favour employees.

I am in little doubt that the decision not to have the virus may have some possible negative outcomes for individuals down the line. This might be the stance taken by airlines or other issues, it is perhaps too early to know. The idea of employers deciding to in effect enforce vaccination in workplaces has not been advanced to date, but I can foresee that it will be raised in some cases. Another issue to be kept under review.

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