Posts Tagged ‘Employment Law’

Annual training on equality and diversity vital to protect employers and staff

Posted on: February 26th, 2021

It is well known amongst employers that training of staff on equality and diversity needs to be carried out.  But a recent case – in which an employer had a complaint of harassment upheld by the tribunal – highlights the importance of ensuring your training is up-to date, comprehensive, regularly delivered and is being effectively applied.

In the recent case of Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal (EAT) rejected an employer’s ‘reasonable steps’ defence to a claim of racial harassment on the basis that diversity training carried out two years earlier had become ‘stale’ and ineffective.

As a reminder, an employer will be liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment, whether or not it is done with the employer’s knowledge or approval. However, employers may be able to defend a discrimination claim by arguing that they took ‘all reasonable steps’ to prevent employees from either committing a particular discriminatory act or committing such acts in general. The threshold that must be met is a high one and will involve the employer demonstrating that they have taken all steps required to prevent the incidents occurring.

What happened in this case?

The case in question involved an employee who was subjected to harassment related to race by a fellow employee. The effected employee subsequently brought claims in the Employment Tribunal and the employer sought to rely on the reasonable steps defence. The Tribunal rejected this and upheld the complaint of harassment. Whilst the Tribunal accepted that training relating to harassment had been carried out, the training had been delivered two years earlier and was therefore held to be ‘stale’. The Tribunal considered that the passage of time between the training and the discriminatory acts meant that the training had clearly faded from the guilty employee’s memory.

The Tribunal held that the employer had not taken all reasonable steps to prevent the discrimination, as a reasonable step would have involved carrying out refresher training. Given that the employer organised subsequent training after the complaint was made, it was clear to the Tribunal that the employer agreed refresher training would be an effective way to eliminate these issues in the future. The training that the employer delivered was also held to be ineffective in practice on the basis that the employee making the comments thought it was merely ‘banter’ and that three other employees (two being managers) who heard or became aware of the racist comments failed to report it to HR or to take any action at all. Effective training would have warned against such ‘banter’ and highlighted the importance of dealing with such comments head on.

The employer appealed the decision, arguing that the effectiveness of the training was irrelevant to the question of what constitutes a reasonable step. The Employment Appeal Tribunal dismissed the appeal and concluded that the Tribunal had been right to reject the reasonable steps defence on these facts.

What does this mean for employers?

This case is an important reminder to employers of how fundamental diversity training is and that this training must be:

The case also highlights that training carried out two years ago will not be sufficient.

This ruling highlights the best practice approach of having annual training as the the safest and most effective approach for employers to take going forward.  This will remind employees of the importance of equality in the workplace and help employers in the event of needing to defend any Tribunal claims.

Our employment experts regularly provide specialist employment training courses on equality and diversity, which places a strong focus on practical examples and case studies.

The course can take the form of a workshop, a seminar for larger groups, or an online recording that can be watched by your staff at their own pace.

If you would like to discuss this case in more detail or speak with a member of the Team about delivering an updated training session to your workforce, please get in touch today. Our Employment Team would be happy to help.

REMINDER: Two months to go – IR35 changes affecting consultants and contractors

Posted on: February 8th, 2021

There are just two months to go until the postponed changes to the off-payroll working rules (IR35) come into force, which may impact upon your use of contractors, consultants and freelancers.  

As we previously reported, strict IR35 tax rules will apply to the private sector from 6 April 2021, which means that now is the time for you to take stock and review the status of your workforce. The changes are going to shift the burden on determining the tax status of the individual providing the service to the organisation at the end of the supply chain.

To give you some practical examples, the new rules will apply to medium or large organisations that engage contractors and consultants through an intermediary, such as:

Regardless of your organisation’s size, the correct employment status of the contractors and consultants you engage on a self-employed basis has become a very significant and topical issue for many employers, not just because of these upcoming IR35 changes. The cost of getting employment status wrong can be substantial, ranging from an entitlement by the contractor to claim unfair dismissal, National Minimum Wage and even holiday pay, together with the tax notices that may be issued by HMRC.

We appreciate that it can be difficult to navigate through the various case law, guidance and legislation to determine whether an individual your organisation engages to provide services is an employee, worker or self-employed, for legal and tax purposes, and we understand the need and benefits of a flexible workforce. However, whilst you may have a contract in place which states that the consultant or contractor is self-employed, the tribunals, courts and HMRC will always look beyond the documents in place to see how the relationship operates in practice.

If you are interested in speaking to our Employment Team about employment status generally, or would like to understand the impact of the IR35 changes on your business and its use of off-payroll working, our Employment Team would be happy to help.

Latest update on the job retention bonus and job support scheme

Posted on: October 9th, 2020

As the ability to furlough employees under the Coronavirus Job Retention Scheme (CJRS) rapidly comes to an end, employers will need to consider whether they can, and wish to, benefit from the Government’s two additional schemes: the Job Retention Bonus, and the Job Support Scheme.

Now that some of the finer details of these alternatives have been released by the Government, we provide a summary for employers below. It is also worth noting that since we wrote this article, the Chancellor has announced a further amendment to the Job Support Scheme:

Job Retention Bonus

Put simply, the Job Retention Bonus is a £1,000 one-off taxable payment made to employers, for each eligible employee retained until 31 January 2021. The Bonus does not have to be paid on to the employee.

The following specific rules apply:

Job Support Scheme

The Job Support Scheme is designed to protect ‘viable jobs’ in businesses who are facing lower demand due to the COVID-19 pandemic. The Scheme is certainly not as generous as furloughing under the CJRS and operates differently. Ultimately, an employer will continue to pay its employee for any time worked, but the burden of hours not worked will be split between the employer and the government (through wage support) and the employee (through a wage reduction), helping the employee to keep their job.

As always, the devil is in the detail. In summary:

Job Support Scheme – Local COVID Restrictions

The Chancellor announced on Friday 9 October that the Job Support Scheme will be expanded to support businesses required to close due to local COVID-19 restrictions. We are awaiting full guidance, but the headline points are:

If you have any questions about the content of this article, please do get in touch with the Employment Team at Coffin Mew.

Mental health and well-being in the workplace

Posted on: October 8th, 2020

With World Mental Health Day around the corner and the COVID pandemic challenging even the most resilient of individuals, mental health and well-being at work continues to be one of the most difficult and complicated issues that employers encounter.

Getting it wrong can be extremely damaging to staff morale and reputation, as well as time consuming and costly, so Coffin Mew teamed up with Stratus Coaching and recruitment experts, Hays, on 8 October to host a webinar on this hugely topical issue.  Attracting over 100 senior HR professionals and directors, this interactive session focused on exploring the strategic considerations for employers planning for the workplace of the future, as well as practical steps businesses can take to improve and support their employees’ well-being in a time of constantly changing government guidance. 

In a poll 90% of delegates anticipated that home/agile working would become integral to the way their workforce operates, with about half indicating that remote working would largely replace attending a physical workplace. The return to the office was also high on the agenda of concerns and provoked a substantial Q&A session dealing with risk assessment and consultation, Covid anxiety, how to handle those who refuse to return, whistleblowing, H&S detriment and flexible working requests.

Topics also included:

If you have any questions about managing mental health and well-being in the workplace, or if you would like to request a copy of the webinar recording and presentation, the Employment Team at Coffin Mew would be happy to help so please do get in touch.

When working remotely means working overseas, what should employers consider?

Posted on: September 18th, 2020

With a sudden increase in remote and home working following the COVID pandemic, it is unsurprising that employees are starting to re-evaluate how and when they work, together with where they carry out their work.

As a result, our Employment Team have received a number of queries from businesses asking what they need to consider if an employee asks to move abroad or work from an overseas home. We outline some of the key areas of consideration below:

Tax
Our recommended starting point is to speak with your financial and tax advisers to establish the potential tax impact for both the individual and the company. Sadly, this can sometimes be commercially and administratively burdensome, so it is worth investigating the tax position before considering the next steps.

Homeworking generally
In agreeing to a permanent or majority homeworking arrangement like this, you will need to consider the usual homeworking quandaries, including the following points:

Contract

Immigration
An employer will of course need to consider whether the individual will actually have the right to work in the country concerned. This will depend upon the immigration rules of the relevant country, together with the nationality and right to work status of the employee.

If the employee wishes to work from an EEA country and s/he is a UK national, it is worth noting that the Brexit transition period will end on 31 December 2020, meaning that it may be beneficial for a move to take place prior to this date.

However, we strongly recommend that local immigration advice is taken at the material time to ensure working abroad does not result in illegal working. Further, non-UK national employees should be encouraged to take their own independent immigration advice (including any impact their absence from the UK may have on a return in the future).

Insurance
Employers should speak with their current Employers Liability Insurance (ELI) provider to establish whether the current ELI will cover an employee working overseas. Additional or local cover may need to be obtained.

Employment Rights/Protections
Where employees live and work abroad, they can become subject to the jurisdiction of the overseas country and benefit from the local mandatory employment rights regardless of what is stated in the contract (i.e. local laws can potentially override express contractual wording). This may, for example, include health and safety obligations, rest breaks, paid annual leave, family friendly rights, pension entitlements and, typically the most onerous, rights on termination of employment.

We recommend that employers seek local advice on this point to understand the likelihood of foreign employment rights and protections applying and, if so, what steps can be taken to avoid this (if any).

Employment Benefits
Dependent on the nature of the relevant schemes or policies, the employee’s participation in company benefits (such as pensions or private health care) may be impacted or invalidated by a move abroad. You will need to speak with your applicable providers to determine this and also ensure the employee is fully informed before making the move.

Setting a Precedent
Given the pandemic and the sudden prevalence of remote and home working, requests to work from alternative locations (such as family homes, holidays or overseas) are on the rise. As a result, it is worth considering that other requests to work overseas may follow, particularly if you do approve one employee’s request.

Whilst employees do not have an automatic right to change their place of work and a move will of course depend on an individual employee’s circumstances or role, it may cause friction or be difficult to reject a future employee’s request in similar circumstances. As such, in communicating an employee’s move abroad, it would be wise to highlight the one-off or discretionary nature of the arrangement.

If you have any questions about the content of this article, or you would like assistance with considering or responding to an employee’s request to work abroad, the Employment Team at Coffin Mew would be happy to help so please do get in touch.

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