LOCH ASSOCIATES GROUP NEWSLETTER
TUNBRIDGE WELLS
DECEMBER 2019
BRIGHTON
HOT TOPICS Why language matters Is the menopause a disability?
www.lochassociates.co.uk
Hot Topics What’s up with WhatsApp and Facebook in the workplace? Page 2
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TIMELY TOPICS Intellectual property rights Staff status for tax purposes. Page 3
LONDON
Q&A Can flexible working boost mental health? Page 3
ARE GRIEVANCES ON THE RISE? Dealing with complaints at work. Page 3
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DECEMBER 2019
HOT TOPICS
What’s up with WhatsApp and Facebook in the workplace? ing than ever before, women experiencing the menopause transition during their working lives is set to become increasingly common.
As the use of messaging services becomes increasingly integrated into work, employers should be aware of their potential liability. Clearly defined company-wide policies regarding the use of social media and messaging apps can help minimise the risk of disputes and claims. A recent example of this was in the case of Forbes v LHR Airport Ltd, the Employment Appeal Tribunal (EAT) had to consider whether or not the posting of a racist image on Facebook by an employee was done during the course of employment, which could make London Heathrow Airport vicariously liable. Effective management of social messaging in the workplace can reduce management time spent on investigations, disciplinaries and potential exits. To limit liability in relation to group chats, employers should create policies covering appropriate use of language in group chats, and socially acceptable ways to find and setup groups. “Cherry picking” members of staff can lead to claims for bullying, harassment and discrimination by those excluded. We regularly see disputes arise from gossip, banter and the sharing of inappropriate pictures or videos through social media, and employees should be made aware that, ultimately, all messages related to a dispute or claim are disclosable and they could face personal liability for discrimination claims.
Language Matters: choose your words carefully A new LinkedIn report called Language Matters, on the effects of language used by employers in job adverts, has found that certain elements of job listings can be off-putting to a diverse range of potential candidates, and revealed differences in the reception of adverts between men and women. The report analyses the results of a survey of over 250 hiring managers and 1000 employees. Differences were revealed in relation to the ways male and female employees react to aspects of a given job specification. While salary was the most important consideration for both men and women, 61% of women listed annual leave as a top priority, compared to only 48% of men. However, the answers given by hiring managers revealed that 40% of employers do not consider language while writing job adverts, and over 40% do not track the gender of respondents. Employers would benefit
from the carefully considered use of language when drafting job applications. Well chosen language could widen the pool of potential applicants, as well as reducing the possibility of complaints relating to direct or indirect discrimination. Menopausal symptoms can be categorised as a disability, leading to successful claims for sex and disability discrimination According to recent research commissioned by Health & Her, supplemented by the Office of National Statistics (ONS), time taken off work relating to menopausal symptoms has caused a productivity loss of 14 million working days annually. With more women aged 50+ work-
In handling matters related to menopause amongst staff, employers should be aware that case law now contains multiple examples of menopausal employees bringing successful claims, in relation to sex and disability discrimination. For example in the 2012 case of Merchant vs BT PLC, the Employment Tribunal found that Ms Merchant was unfairly dismissed following a final written warning for poor performance. She had informed her manager that she was going through the menopause and that this could account for her under-performance. Meanwhile, the manager had failed to follow the company’s capability process properly, instead basing his decisions on his own understanding of the menopause. He was found to have discriminated against Ms Merchant on the grounds of her sex.
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DECEMBER 2019
Do These Changes Affect Your Business? INTELLECTUAL PROPERTY RIGHTS OF EMPLOYEES An employee has been successful in seeking retrospective payment from his employer in a ruling by the Supreme Court. Professor Ian Shanks, a scientist who developed a system used by many diabetics while working for Unilever in the 1980s, has been awarded £2 million in compensation as a “fair share” of the company’s net benefit of around £24 million from the patents. This ruling is the end result of a 13 year legal battle, in which Professor Shanks was unsuccessful at every
stage, prior to the ruling from the Supreme Court. Usually, any intellectual property rights belong to employers, unless outstanding benefits related to the creation arise. The decision is the first of its kind in 30 years, and could create a greater incentive for employees to seek payments for their creations at work.
CHECKING THE STATUS OF STAFF FOR TAX PURPOSES IR35 refers to the United Kingdom’s anti-avoidance tax legislation, which is primarily designed to tax disguised employment. HMRC is continuing to tighten loopholes to prevent individuals avoiding paying income tax and national insurance contributions. As of April 2020 medium and large employers will face new liabilities if they are found to have engaged an individual, via an intermediary body on a self employed basis, and that individual is ultimately deemed not to be self employed.
Q&A
Check out our Q&A on flexible working for more information.
Here at Loch Associates Group we offer a Status Order Tool. Call us on 0203 6675400 to find out how we can help your business.
Q: Do I have to have a meeting with the employee to discuss the request? A: A meeting is not obligatory, but it is useful to fully explore the changes requested, address any questions and potentially devise an alternative arrangement that fits both parties.
FLEXIBLE WORKING CAN BOOST MENTAL HEALTH
A recent survey conducted by Wildgoose has revealed that more than a third of workers believe that their mental health has improved as a result of being able to work flexibly. The data was collected from 115 companies, and revealed that many employees who are not able to work flexibly believe that they would be better able to manage their mental health if they could — specifically, more than half of men, and one third of women. Employers should be aware that employees with at least 26 weeks’ service have the right to request flexible working.
Failure to correctly identify the status of all hired individuals could leave a business vulnerable to Employment Tribunal claims, if an ostensibly self-employed person later alleges that they were in fact an employee or worker. Furthermore, if the Pensions Regulator determines that an individual is not self-employed, the organisation may be liable for their pension.
Q&A: Flexible working requests Q: Do all employees have a right to work flexibly? A: No. However, employees with at least 26 weeks’ service have a right to request working flexibly, and can make such a request once every 12 months. Q: What changes can an employee request? A: Changes which employees may propose in regard to flexible working may include a change of hours of work, a change to the times they work, and/or a change of location, for example working from home.
Q: Do employees have to provide specific reason(s) for making a flexible working request? A: An employee is required to specify the changes they want, what effect they think it will have on the employer, and how any such effect could be dealt with. Q: Do I have to consider a flexible working request? A: Yes, all flexible working requests must be given due consideration by employers in a reasonable manner. Requests must be determined within 3 months from the date of the request, unless an extension is agreed with the employee.
Q: If a request is approved, will the change be permanent? A: Yes, unless a trial period is agreed. Q: Do I need to have a policy in place around flexible working requests? A: It is not essential to have a policy on flexible working requests, but guidelines can help ensure consistency in the handling of requests, as well as deterring employees from thinking they have the right to work flexibly, as opposed to requesting it. Loch Employment Law can help employers handle flexible working requests, and provide advice on constructive policy creation in this area.
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A MESSAGE FROM PAM A message from Pam Loch, Managing Director of the Loch Associates Group, addressing the rise of grievances and complaints at work. Have you noticed more grievances and complaints at work? Our HR consultants and lawyers have noticed an alarming increase in employees submitting written complaints to their employers about colleagues. Many of these issues can be resolved easily without a formal complaint being made and employees may not realise that the submission of a written complaint amounts to a grievance. necessitating that employers follow a grievance procedure to resolve the issue. Dealing with grievances can be a costly and time-consuming experience. and failing to handle the situation correctly can result in additional costs, for example relating to an exit or Tribunal claims. The Loch Associates Group handles many issues relating to grievances and complaints, and is familiar with the reasons why employees may submit complaints about colleagues in writing. Many written complaints result from the reluctance of employees to raise the issue verbally. By raising the issue in writing, they hope that someone else, i.e. the employer, can take responsibility for resolving things. Making staff aware of the full procedure that must then be followed when they submit a written grievance can deter them from doing so. Employees may decide that it is worth trying to resolve the situation informally, without putting in a written complaint, if they are made aware that an investigation may need to be undertaken which will involve talking to other employees about the issues. To help manage grievances more effectively, we have introduced a new grievance process which our clients can use. To find out more, please contact me directly at pam. loch@lochassociates.co.uk or call 0203 6675400.
www.lochassociates.co.uk
DATES FOR DIARY: At the Loch Associates Group, we are always keen to provide employers with courses which can help improve the management of your workforce. The beginning of 2020 is ripe with opportunities to educate staff on mental and physical first aid. 12–13 February, 2020. Mental Health First Aid Course — Brighton & Hove. In the UK 91 million days per year are lost due to mental health related issues, with one in six workers in the UK currently experiencing depression, anxiety or another mental health issue. We are experts in handling mental health issues in the workplace, and have developed a range of services to help employers identify and manage mental health issues among staff. This two-day course, backed by MHFA England, will train your employees to become Mental Health First Aiders, giving them an in-depth understanding of mental health and the factors that affect it, as well as recognising colleagues in distress and providing confidential signposting towards further support. 26 February, 2020 Mental Health First Aid Course “Champions” – Brighton and Hove This one day course trains your staff on the basics of Mental Health Issues in the Workplace. 27 February, 2020. Emergency First Aid at Work — Tunbridge Wells. This one-day course will equip staff with the skills to act as First Aiders in the workplace, introducing a range of skills relating to managing injuries and illnesses that could occur at work, as well as delivering emergency first aid. 11 – 12 March, 2020 - Mental Health First Aid Course — Tunbridge Wells.
AROUND THE WORLD – FACT Japan Seeking Trim Waists Under a national law that came into effect two months ago, companies and local governments must now measure the waistlines of Japanese people between the ages of 40 and 74 as part of their annual checkups. That represents more than 56 million waistlines, or about 44 percent of the entire population.
TUNBRIDGE WELLS
BRIGHTON
LONDON
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