What are Reasonable Adjustments?

The case of Aleem v E-ACT Academy Trust involved a science teacher who on account of mental health was unable to continue in her teaching role. The claimant’s mental ill health amounted to a disability under the Equality Act 2010 and she had significant periods of sickness absence.

During a probationary period and a subsequent grievance and grievance appeal, the claimant returned to work in the role of cover supervisor, which attracted a lower rate of pay than the teachers’ rate. However, during this temporary period she was paid by her employer at the higher teachers’ rate.

Following the probationary period and the grievance process, occupational health (OH) advised that the claimant remained long-term unfit to return to the teaching role. However, OH did confirm that the claimant would be fit to carry out the cover supervisor role. The claimant accepted the role, at the lower rates applicable to the cover supervisor position.

The claimant brought a number of claims against her employer. The employment tribunal dismissed the claim that the employer had failed to make reasonable adjustments by not paying the claimant at the higher teachers’ rate. The EAT dismissed the claimant’s appeal. It was held that it was not reasonable to expect the employer to continue to pay the teachers’ rate by way of an adjustment, once the probationary period and the grievance and grievance appeal had concluded. The employment tribunal had found correctly that during the interim period it was appropriate to pay the higher rate (as the employer duly did) as this action supported her return to work. The EAT also found that the tribunal had appropriately taken into account the significant additional cost should the teachers’ rate be paid indefinitely. The tribunal had also correctly taken into account evidence from a witness that the employer was facing financial pressures at the time.

This case serves as a useful reminder that the principle behind making reasonable adjustments is to help support employees to return to work. In a previous case regarding sick pay, the Court of Appeal confirmed that it would rarely be reasonable to pay enhanced sick pay to a disabled employee over a non-disabled employee and that disabled people must not be treated as ‘objects of charity’. The current case follows a similar theme, with the focus of reasonable adjustments being the return to work. However, it is important for employers to tread carefully and for the facts of each case to be considered. There have been previous cases where enhanced payments have been considered to be a reasonable adjustment.

The concept of the duty to make reasonable adjustments has been subject to much case law. It is for the employment tribunal to objectively determine whether it would have been reasonable to make an adjustment in the circumstances. Factors such as whether the adjustment would ameliorate the disadvantage, the cost of the adjustment in light of the employer’s financial resources and the extent of disruption on the employer can all be taken into account. It is essential for employers to ensure that their staff understand the concept of making reasonable adjustments and are appropriately trained on discrimination law. It is important to note that the employer must not pass the cost of the adjustment on to the disabled employee. If you want help in this or any other employment law issue why not give us a call on 01202 611033, the first 30 minutes are free.

Step 4 Employer Considerations

On the 5th July 2021 the Prime Minister announced the hoped for easing of lockdown measures that will come into effect on 19th July.  He was very clear that this did not mean the Pandemic was over and that we would continue to see a rising number of people getting ill with Covid 19 and even rising numbers of deaths albeit lower than the death toll in 2020.

The intention is that the Government will move away from legal restrictions and allow people to make their own informed decisions about how to manage the virus.  This means that Employers must do everything they can to make the workplace safe for both staff and customers and consider what rules and or guidance they will put in place.  The duty of care the employer has for their employees will remain a legal requirement.

The first measure announced was the removal of legal limits on the numbers of people who can meet both indoors and outdoors to all venues.  Businesses can re-open, the 1 meter plus rule on social distancing and the wearing of face masks removed.  The instruction for people to work from home if they will be removed and the Government does not intend to issue any Covid Certificates other than what is on the NHS App and the vaccination certificates that are issued with each vaccination.  As a result, the protection against the spread of Covid 19 provided is essentially the vaccinations and airflow.  Today the Government will announce the changes to the guidance on bubbles and isolation if Covid 19 is detected for Schools.

We advise that if businesses conduct a Covid 19 Risk assessment for both the building and the individual before 19th July taking into account the removal of the legal requirement for individuals to comply.  As an employer you are free to put in any safety measures you think are necessary to protect your staff and customers and whether they are mandatory or just guidance.  If you are thinking of making them mandatory for staff then we would certainly advise you consult with them to gain their views.  If you are going to make them mandatory for customers/clients then you need to consider how you will enforce them.

On the employment front you should consider whether you are going to permit a continuation of home working on either a full or part time basis.  If you are and your current contracts state that the place of work is the business address then their will need to be a change to the Contract.  You will also need to consider whether your expenses policy needs amending as paying expenses for home to place of work has tax implications.  Finally, you must consider what you will do if an employee declines to comply with any safety measures you decide to make mandatory.

As always, on all these matters including the Risk Assessments we at Expert HR Solutions are available to advise or even carry out the work for you.  Please call on 01202 611033 if you wish to talk, there is a lot more to consider than we can fit in this blog.

Changes to Employment Law 2021

At the Boardroom Network event on 29th April 2021 we delivered an animated video on the expected changes to Employment Law in 2021.  Some of these changes are already in force but all will require changes in the way you act as an employer.  It is a short 7-minute watch and can be seen on our YouTube channel.  The link is below.

YouTube Video

If after watching, you have any questions then please give us a call on 01202 611033 and we will be happy to help.

Alternatives to Redundancy

Our last Blog was about planning ahead for the potential need to make some posts redundant when the furlough scheme ends in September.  Part of the process of placing posts at risk of redundancy is for both the employer and employee to think of any suitable alternatives and we suggest as a responsible employer you should be doing that before beginning any consultation process.  This Blog will explain some of the options, not all will be applicable to your business.

Restrict/ reduce external recruitment
Avoid replacing employees who exit the business.  Consider whether you can fill vacancies by redistributing work among existing staff or by accepting internal applicants, before advertising externally.

Flexible working requests – reducing hours/ days worked
Covid 19 has taught us that flexible working is entirely possible to manage and is every employees right to request for flexible working, although only once in any 12 month rolling period.  Employers can introduce a reduction in hours/ days worked for a certain group of employees on a temporary or permanent basis, or invite employees to make flexible working requests with a view to achieving the same. Employee consent must be obtained.

Job shares
This arrangement enables two (or more) employees to split a full-time job between them, while entering into an agreement regarding the hours and days of work as well as how the role and duties will be split. 

Voluntary sabbaticals/ career breaks/ secondments
Unpaid sabbatical or career breaks save the salary costs for a fixed period of time, while retaining valuable staff and giving them the opportunity to do something for themselves.

Early retirement
Although there is no default retirement age offering early retirement could result in vacancies becoming available within the business, which could then be taken up by employees who might have otherwise been at risk of redundancy. 

Make savings in other areas
As a business owner you should always be managing costs so reducing costs elsewhere may reduce the size of the savings you feel need to be made and so reduce some redundancies.

Purchase of additional annual leave
Offering employees the opportunity to take extra holiday in exchange for a pro rata reduction in salary can save some money in the short-term during quiet periods.

Restrict/ ban overtime
Banning or restricting overtime can be an effective way to reduce costs.  Communicate to staff that the measure is in place as a means to avoid compulsory redundancies in order to soften the blow for those employees who rely on the additional pay they receive from working overtime. 

Redeploy or retrain
If one area of the business is busier than another, consider retraining or redeploying employees with transferable skills to new roles on a temporary or permanent basis. Redefining existing roles in line with work demands can enable a restructure to take place without job losses. Any significant changes will need to be agreed in writing with the relevant employee.

If you want help in planning for the post furlough era why not give us a call on 01202 611033 or initially you could take a look at the redundancy section under people management on this website.

The Budget and Business

There was an awful lot in Rishi Sunak’s first Budget as Chancellor of the Exchequer for businesses to absorb says Chris Wilkinson from Expert HR Solutions Limited. So, to help he continues please read our simplified guide to what was pledged.

Employers will have access to business interruption loans of up to £1.2m and to refund businesses their statutory sick pay (SSP) payments as part of a £30bn package of measures to protect organisations from the effects of the growing coronavirus outbreak in the UK.

The Chancellor said the government would guarantee 80% of the value of bank loans made to SMEs struggling to pay salaries, bills or for new stock during the outbreak, up to the value of £1.2m. The loans would be provided by the British Business Bank. Firms with fewer than 250 employees will also be able to claim a refund for the first two weeks of SSP paid to employees as a result of coronavirus. This followed the previous announcement that SSP will be paid to all those who are advised to self-isolate, even if they do not have symptoms. This was later clarified to say they have to have been advised by the Government, NHS 111 or their GP to self-isolate, so please do panic that staff can just take the time off. There will also be a new form so that those self-isolating do not have to go to their GP surgery to get a fit note for the second week.

Elsewhere in the budget the Chancellor made several other promises employers should take note of, including:

  • An extra 12 weeks paid leave for parents of premature babies;
  • An increase in the employment allowance for national insurance contributions from £3,000 to £4,000, which will come into effect in April 2020;
  • The introduction of a £3bn National Skills Fund with the aim of improving adults’ technical skills.

If you would like advice on how you can manage any of the above or any other employment issue give us a call on 01202 611033 and we promise to speak to you in plain English and provide pragmatic advice that helps you stay the right side of the law.

Managing Tribunals

Chris Wilkinson of Expert HR Solutions Ltd has noticed a rise in threatened and actual Tribunal cases following defeat in the Supreme Court at the hands of Unison in 2017 of Tribunal Fees.  He continues that he has also noticed that Employers are increasingly turning to Settlement Agreements or ACAS COT 3 Agreements almost as a first line of defence on the basis that it is cheaper and less time consuming than defending the case.  Whilst both of these routes have their merits there are alternatives he says.

Back in 2001 Lord Bingham defined ‘vexatious litigation’ as follows: “The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court…”

While an employment tribunal’s ability to restrain and deter vexatious litigants has its limits, there are some practical steps employers can take, including:

  • If a claim has been received and you suspect the claimant may be a serial litigant, check whether they have made similar claims before all recent tribunal judgments are now online.
  • Check whether they have been subject to the attorney general’s ‘vexatious litigants’ list or a civil restraint order, preventing them from issuing claims.
  • If the claim appears weak and without any reasonable prospect of success, highlight this on the ET3 ‘grounds of response’ and apply for a strike out or a deposit order, whereby the tribunal can order the payment of a deposit of up to £1,000 as a condition for allowing the claim to proceed.
  • Consider issuing a costs warning letter, putting the claimant on notice that you will apply for costs if they proceed with the claim and are unsuccessful.

The Employment Tribunal Rules of Procedure provide for an initial ‘judicial sift’ stage, which allows a judge to review a case based on the ET1 and ET3, and to strike out the claim (or response) where it has ‘no reasonable prospect of success’, which would apply to vexatious claims. The rationale is to weed out weak and meritless claims at the earliest possible stage.

In practice, few claims are dismissed at this initial stage and the hurdle to have a claim struck out is high. Employment judges have tended to take a cautious approach to striking out claims.  In addition to the power to strike out claims at the initial stage, the employment tribunal can also strike out claims at any stage of the proceedings on the grounds that the claim (or part of it) is “scandalous or vexatious or has no reasonable prospect of success”; however, as with the initial judicial sift stage, this remains a high hurdle to overcome.

When it comes to costs, the employment tribunal has tended to show more willingness to award costs against litigants where their conduct is “vexatious, abusive, disruptive or otherwise unreasonable”.

If you would like advice on this or any other Employment issue why not give us a call on 01202 611033, the initial call is free.

Attract and Retain the Best Staff

A recent survey by our Professional body found that only half of permanent employees (51%) think they are paid fairly and even fewer (34%) think that everyone in their organisation is paid fairly says Chris Wilkinson from Expert HR Solutions.  But we prefer to present solutions not problems he continues so read on.

The report finds the perception of unfair pay is being driven by employers’ lack of communication around pay.  When people don’t think they’re paid fairly, organisations reduce their chances of attracting and retaining the best talent. Employers also miss the opportunity to improve employee performance and well-being.  Chris says it is important to remember that what matters here is not what you think but what is the perception of your staff, because their perception is their reality.

Part of the solution says Chris is to communicate what your pay policy is clearly to all staff.  We suggest employers think about their pay policy differently and think more in terms of benefits package which allows employers to be much more creative in how they reward staff.  We all place different values on different things, so think of the benefits package like the shopping basket, pay is just one of the things that can be put in the basket.  It also happens to be a legal requirement to pay your staff at least the National Minimum Wage (NMW).  It is also true that at this moment in time the recruitment marketplace is highly competitive with far more jobs available than candidates.  It is therefore a fact of life that if you want to attract and retain the best you need to know what your competitors are doing.

There are any number of surveys that show that the offer of flexible working is consistently in the top five benefits that employee’s value.  The law was changed a few years ago to permit any employee to make a flexible working request so why not include flexible working as one of the benefits you offer as a benefit.  It has the advantage that it may not cost much to implement but will definitely be valued.

There is a huge amount of political and press interest in Senior Reward Packages currently, but have you ever done any of the following asks Chris:

  • explained to your staff why they get paid what they do, only about 60% of employees say this has happened to them;
  • have a formal process to assess and manage pay risk, less than 20% of companies do;
  • carried out an equal pay audit in the past three years to ensure they are complying with the law, less than 40% of companies required to do this have done so;
  • benchmarked your benefits package against other employers.

Well says Chris we think we have a solution.  If you are one of our Gold or Platinum retained clients, why not take advantage of the fact that included in the monthly fee is the opportunity to benchmark your package against other employers.  If you are not a retained client you can get the same comprehensive report which shows not only salary comparison, but other benefits such as insurance, car, bonus and so on both nationally and locally, call us on 01202 611033.

Important Information about Cost Savings

For SME’s there is some good news regarding some potential cost savings if you have been paying staff Statutory Sick Pay (SSP) due to Covid 19 to either current or former Employees says Chris Wilkinson from Expert HR Solutions.  It only applies to employees who were off work after 21st December 2021 and were on your PAYE scheme that was created on or before 30th November 2021.  If that is the case then you can potentially reclaim up to 2 weeks SSP that you have paid out to them.  More details of whether you can claim and how to do so can be found at https://www.gov.uk/guidance/claim-back-statutory-sick-pay-paid-to-employees-due-to-coronavirus-covid-19.

If you want advice on this or any other employment law matter, please give Chris a call on 01202 611033.  You do not need to be an existing Client to make use of this service.

Removal of Covid Regulations – Produced Jointly by Chris Wilkinson and Clive Thorp (CT Health and Safety)

Sixteen of the remaining temporary provisions of the ‘Coronavirus Act’ will be removed by 24th March.  The remaining 4 will be terminated in the next six months.

As of today, Thursday 24 February, the legal requirement to self-isolate following a positive test has ended.

Today also marks the end of self-isolation support payments, although Covid provisions for Statutory Sick Pay can still be claimed for a further month says Chris Wilkinson from Expert HR Solutions.

For fully vaccinated people, close contacts and those under 18 there will no longer be a requirement to test daily for seven days. Routine contact tracing will also end. Alongside this, the legal requirement for close contacts who are not fully vaccinated to self-isolate will be removed.

Until 1st April the Government advises that for people who test positive, to continue to stay at home.  Following this date though, they encourage people with Covid-19 symptoms to exercise personal responsibility – no legal requirements apply.

For education and childcare settings specifically, there will no longer be a requirement to undertake twice weekly asymptomatic testing as of today also.

It is worth noting that although legal requirements have and will be removed, this does not mean Covid-19 is no longer a risk. “Nor does it mean employers can simply revert to old ways of working and require all employees to return to the office.” Chris says.

What does it mean for employers?

This announcement does not remove the Duty of Care employers owe to their employees under Health and Safety Law. In fact both Clive and Chris argue, if anything it places an even greater emphasis on them.

The risk of serious illness due to Covid-19 may have been reduced as a result of the vaccination programme, however this action does not mean risks are completely removed. 

As an employer you must do everything that you can to protect your employees. We advise you to do the following:

  • View Statuses– We advise that you view the Covid vaccination status of all your employees (by either viewing the outcome of a Lateral Flow Test or asking the employees to continue to use the NHS App to record the results of tests).

    *Data Protection notice – This is classed as ‘Special Category Data’ under Data Protection. It is worth noting, if you are only visually checking someone’s Covid-19 status (either a physical hard copy or digital pass) that would not constitute ‘processing’ personal data. Requesting to view is therefore possible, but if you process the data you will almost certainly be in breach of GDPR requirements!
  • Purchase LFT tests for your business – If you decide you do want to check every employee and want to enforce proof of a ‘Covid free status’ before returning to workplaces, then you should consider buying lateral flow tests for your employees as they are no longer freely available.

    Bulk purchases usually costs between £1.50 and £3.50 per test. If you choose to go down this route, the Government advice says to repeat the tests regularly every 3 to 4 days. Meaning each employee would need two tests per week minimum.
  • Be aware – of employees who fall within oldest age groups and any who are considered ‘most vulnerable’ to Covid-19.

    From 1st April, the free symptomatic and asymptomatic testing for the general public will be ended, but the provision of free symptomatic tests to the oldest age groups and those most vulnerable to Covid-19 will continue. 

Clearly communicate – As a basic minimum we recommend you clearly communicate to staff the steps you have taken to mitigate against the risk. We advise this to include the following:

1. ·Undertaking a building risk assessment
2. Undertaking regular employee risk assessments
3. Ensuring good air flow through the building
4. Consider and detail clearly your requirements for regular lateral flow testing.

Expert HR Solutions have teamed up with CT Health and Safety and can either undertake these risk assessments for you or provide the forms for you to undertake them yourself. Get in touch with Clive on 07956 07479 or Chris on 01202 611033

Absence Management

From 6 April 2022

You may or may not be aware that the law changed in April 2022, and it is no longer necessary for your doctor to sign your fit note. They may now instead issue the document digitally, with a digital signature instead. As such, should you have the need to obtain a fit note, do not be concerned if it looks a little different and the doctor’s signature is not on there.

From 1 July 2022

Another change you may be aware of comes into effect from the beginning of July 2022. As this will impact on our sickness absence reporting procedure, I am writing to make you aware that you will see some changes after that date.

Who can issue a fit note from 1 July 2022?

Up until 1 July 2022, it has been the case that only a doctor could issue a fit note (otherwise known as a “statement of fitness to work”) after they have seen (or spoken) to you and assessed your fitness to work. From this date, the list of medical professionals from which you can obtain a fit note is being significantly extended.

From 1 July 2022, the law will change to allow the following to issue fit notes:

  • nurses;
  • occupational therapists;
  • pharmacists; and
  • physiotherapists.

These healthcare professionals will be able to issue fit notes following an assessment of an individual’s fitness for work (a fit note cannot be issued without an assessment).

What will you need to do?

In terms of the process, you follow when you feel unwell, you can still, as normal, go to your doctor/GP for a fit note. However, should you prefer not to, or should you be able to obtain an appointment sooner with one of the above-named medical professionals, then they too can assess your fitness to work, and if necessary, issue a fit note declaring you either unfit for work, or fit with certain adjustments. These notes will be treated in the same as one provided by a doctor/GP.

What is not changing?

You should continue to follow the absence reporting procedure available to you in the employee handbook. This means that for the first seven calendar days, you may self-certify your absence using the usual rules. For sickness absences of more than seven days, you will need to provide a fit note. Should you have any questions as to the contents of this letter, please do not hesitate to contact me on 01202 611033.