The parents who don’t want to go back to the office…

Sarah Russell has been talking to the BBC about parenting, employment law, and work life balance. Sarah has helped many parents’ with flexible working requests and maternity discrimination advice. Do get in touch on sarahr@foxwhitfield.com or 07985 106 233 if you would like any help:

 

https://www.bbc.com/worklife/article/20211007-the-parents-who-dont-want-to-go-back-to-the-office

 

 

Can my Boss Make Me go Back Into the Office?

With the government announcing yesterday that employers are free to bring staff back into the office, what happens if you don’t want to go?

It’s a complex picture.

Your employer has an obligation under the Health and Safety at Work Act 1974 to provide a system of work that as far as possible is free from risks to health and safety. How that obligation will be interpreted around covid is not yet clear, but your employer should be taking protective steps for staff and given the surging case numbers at the moment, that’s potentially a hefty obligation. It’s also worth knowing that it’s potentially an automatically unfair dismissal if you are dismissed for objecting to unsafe working practices.

But what if your workplace is reasonably safe for most staff, but you don’t want to go to it any more?

If your reason relates to an underlying physical or mental health condition, or childcare needs, your position is slightly stronger than if you’re just not keen.

Any underlying, medium to long-term health condition that you may have, will probably count as a disability that gives you disability discrimination protection under the Equality Act 2010. This includes mental health problems. Having a disability obliges your employer to make reasonable adjustments to your workplace for you. The exact nature of those adjustments will depend on how likely the adjustment is to help alleviate any disadvantage caused by your disability in the workplace, and also the resources that are available to your employer.

Working from home is now a difficult adjustment to refuse as if you have worked from home throughout the pandemic, as it will presumably cost your employer very little. It might well be a reasonable adjustment to allow you to continue working from home for longer than members of staff who do not have a disability, even if your employer’s personal preference would be that you were back in the office. Even if the office itself feels quite safe, you could seek a reasonable adjustment to avoid commuting in crowded trains if that prospect is exacerbating a mental health problem such as anxiety, or you think it will increase your risk of catching covid more than is reasonable given your health problems.

If you have found that working from home has made your childcare position easier to manage, but your employer is demanding a full-time return to the workplace, you could put in a formal flexible working request. If you agree to go into the office at least some of the time (perhaps as little as one day a week), it is hard to see how this could reasonably be turned down if your role has been done from home on an ongoing basis for months’ on end.

Sometimes the rejection of an application can give you a potential claim for indirect sex discrimination – which is where a rule, policy or practice which someone of a particular sex is less likely to be able to meet than and this places them at a disadvantage to the opposite sex. So women are traditionally less likely to be able to attend work in person and full-time due to childcare demands, than men are.

There are many other areas to consider as well. What were you told would be the position when you were recruited? Have you been given a reasonable period of notice about the change? How has it been communicated to you and were you consulted? Does your employer want everyone back, or are they deliberately targeting you as an individual? These factors will all affect whether a command to return is a reasonable management instruction that you need to adhere to for fear of disciplinary sanction, or if you might be able to successfully resist.

At Fox Whitfield we can help you to navigate potential problems in your employment from the earliest stages of difficulty. Please contact Sarah Russell on 07985 106 233 or sarahr@foxwhitfield if you would like help.

Dominic Cummings and Employee Confidentiality

Boris Johnson and Dominic Cummings – the Brexit bromance has exploded spectacularly all over the papers. The thing that stands out to an employment lawyer about this week’s very public spat, is just how much data Cummings has retained in his possession relating to his former employment.

Cummings’ blog says  “I have made the offer to hand over some private text messages, even though I am under no legal obligation to do so….

We would really love to have a look at that man’s contract of employment. Most employees, especially senior executives, have extensive clauses in their contracts of employment or service agreements that govern what they are allowed to do with confidential information both during and after the termination of their employment. The nannies in C-list celebrity families are bound up in more restrictions about what they can say than Dominic Cummings appears to be.

From an employment law perspective, the whole thing is astonishing. obligations in a contract of employment usually last in perpetuity and employers take them very seriously. Problems around them often arise in relation to restrictions on working with clients and competitors in a subsequent role, or sometimes due to whistleblowing.

These issues are complex and worth seeking proper legal advice on. We regularly assist employees who are struggling with these problems at Fox Whitfield.

If you think we can help, please contact Sarah Russell on 07985 106 233.

Taxation of Termination Payments

compromise agreement1 300x90 Taxation of Termination Payments

 

The Government has published a document on the “simplification of the tax and National Insurance treatment of termination payments”. That induces some draft legislation that will change the way that termination payments and settlement agreements are taxed and negotiated.

Currently employers may be able to pay notice payments tax free if there is no contractual right to pay in lieu of notice. Also employers can pay up to £30,000 tax free in some cases and higher payments are also exempt from employers National Insurance. 

The new legislation, due to come into force in April 2018 will change this. What is proposed is that:

  1. All pay in lieu of notice payments will be fully taxed and subjected to National Insurance.
  2. Employers will have to pay employer National Insurance on all termination payments of over £30,000.
  3. Payments for Injury to Feelings in discrimination claims will also be taxed.

Employers will still be able to pay up to £30,000 tax free and without National Insurance.

Employers should take this opportunity to look at their current employment contracts and ensure that they have the best contractual protection. It is likely that if these new laws are brought into force that there will be no reason why all employers should not have contractual pay in lieu of notice clauses in their contracts.  It is also essential that employers take fresh legal advice on any settlement agreements that they are using. Once the law changes in 2018 those will need important changes to ensure that they work properly. It is never a good idea to simply keep using an old settlement agreement as employment law does change so quickly. 

In summary the law may be a little clearer on tax once the new legislation is in force. What is also clear is that this will cost may employers and some employees additional tax when terminating employment or settling employment tribunal claims.

Paul Whitfield is the Principal Solicitor at Fox Whitfield.

Fox Whitfield can advise HR, employers and employees on Settlement Agreements , disciplinary processes, procedures and unfair dismissal claims. We can also arrange meetings in the evenings or at weekends to work around your working hours.

www.foxwhitfield.com

0161 283 1276

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.

 

 

HR overstepping their remit?

What are the proper limits of HR in a dismissal? Can HR tell a manager what the outcome of a disciplinary hearing should be or is their role limited to providing advice and guidance of the law and procedure?

This was looked at by the EAT in a decision this month in the case of Ramphal v Department for Transport.

An employee was accused of misuse of his company credit card and was dismissed for gross misconduct as a result. The manager who took the decision to dismiss appeared to have initially felt that this was a case where there was no dishonesty and so the employee should be given a warning for misconduct. However, the manager appears to have changed their mind after advice from HR to find that it was gross misconduct and that they had to dismiss the employee.

In order for any dismissal to be fair the employer must have a potentially fair reason to dismiss but they must also follow a fair procedure the “Was it reasonable to dismiss in all the circumstances” test.

The EAT said that the issue in the case was: “for the dismissal to be fair there has to be a fair investigation and dismissal procedure.  If the integrity of the final decision to dismiss has been influenced by persons outside the procedure it, in my opinion, will be unfair, all the more so if the Claimant has no knowledge of it

They also gave the following guidance that HR must take into account:

“an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure.

The EAT have referred the case back to the Employment Tribunal to determine on the specific facts “whether the influence of Human Resources was improper“.

This case is a very useful reminder that the decision to dismiss an employee must be taken by the manager hearing the case and not by HR or other interested parties. Evidence that the decision was in fact made by someone else is very likely to render a dismissal an unfair dismissal particularity if that fact is not disclosed to the employee during the dismissal process.

Fox Whitfield can advise HR, employers and employees on disciplinary processes, procedures and unfair dismissal claims.

www.foxwhitfield.com

0161 283 1276

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.