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 odom 150x150 Dominic Cummings and Employee Confidentialityver 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.

COVID-19 Redundancies

Sadly many people will be made redundant in the coming weeks and months. This is an interesting article by the Telegraph about how to negotiate the best deal https://www.telegraph.co.uk/money/consumer-affairs/job-risk-coronavirus-negotiate-best-settlement-deal/

We would add to this that the following are crucial:

1. Settlement agreements often contain a clause that says that your offer won’t be valid if you have received or are expecting an alternative offer of employment or a self-employed work. It is a good idea to get the agreement negotiated and signed off asap (even if the termination date is well into the future) so that you can safely commence your job search.

2. Many of our clients have restrictive covenants in their contracts of employment – clauses that will prevent you from working elsewhere in your industry. Clients sometimes assume that these are unenforceable or won’t be enforced and we often advise where this assumption has proven false. It is very important that you understand these restrictions and that they are removed or reduced via the settlement agreement.

3. Only speak to your immediate family about what is going on. Many settlement agreements contain retrospective confidentiality clauses that become a problem if people have spoken to friends or colleagues about problems at work.

4. Trust your gut. If you feel there is something not quite right about how you are being dealt with by your employer, you are probably right. Start taking notes of the conversations you have with them and seek legal advice at an early stage.

5. Instruct a good solicitor. You don’t have to come to us with a completed agreement. We can advise you on negotiation strategy behind the scenes, or conduct the negotiation for you. It’s what we do for a living, so we’re experienced at maximising the amount on offer whilst preserving your reputation.

UNISON LOSES COURT OF APPEAL CASE CHALLENGING TRIBUNAL FEES

The Court of Appeal has rejected Unison’s challenge of Employment Tribunal and EAT fees.

Since the introduction of Tribunal and EAT fees on 29 July 2013 there has been a steady decline in the number of claims issued.

In July 2013 the trade union Unison sought judicial review and a quashing of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. It argued that the fees regime breached the EU principles of equivalence and effectiveness, had been implemented without due regard to the Government’s public sector equality duty, and gave rise to indirect discrimination.

The High Court first heard the claim in the autumn of 2013, and handed down judgment in February 2014. The High Court was unconvinced by the evidence before it regarding the impact of the Fees Order and preferred to ‘wait and see’ and allow any problems to be addressed by the Lord Chancellor.

Following the rejection of the first claim and statistics supporting a dramatic fall in Employment Tribunal claims Unison brought a second claim, which was heard in October 2014. However, in a judgment handed down in December 2014 the High Court held that the statistics were not enough to show that any individual had been prevented from bringing a claim by the level of fees. It also held that any indirect discrimination in the Fees Order was justified by reference to the Lord Chancellor’s stated aims of transferring a proportion (one third) of the running costs of Employment Tribunals and the EAT to service users who could afford it; improving efficiency by deterring unmeritorious claims and encouraging alternative methods of dispute resolution. Unison appealed both High Court decisions to the Court of Appeal.

Today the Court of Appeal handed down its judgment. The Court acknowledged that it has been a longstanding principle of EU law that, “persons who claim that their rights under EU law have been breached must have access to an effective remedy for that breach otherwise the rights in question would be illusory” but the Court rejected Unison’s argument that this principle had been breached by the Fees Order. Whilst accepting that evidence in respect of notional, rather than actual, Claimants could be relevant it was held that the provision in the remission regime allowing for “exceptional circumstances” meant that it could not be said that the fee system in general was so unaffordable so as to mean that there was no effective remedy under EU law.

The Court also dismissed arguments based on indirect discrimination agreeing with the conclusion that any potential discrimination could be objectively justified. It was also not accepted that the public sector equality duty had not been complied with and found that the Equality Impact Assessment undertaken by the Lord Chancellor had identified the possibility that the Fees Order would have a greater impact on people with a protected characteristic but concluded that this would be cancelled out by the availability of remission.

Unison have said that they will seek permission to appeal to the Supreme Court. The Government also continues with its review of the fees regime. However, for the time being, it looks like Tribunal fees are here to stay.

Fox Whitfield can provide advice and assistance on all types of Employment Tribunal matters (whether bringing / defending a claim) as well as exploring alternative methods of resolving employment disputes.

If you require further advice or assistance you can contact me (Dionne Dury) on 01173305980 or email me at dionned@foxwhitfield.com

CCTV Employment Law: Using CCTV to Monitor Employees

CCTV Employment Law

Employment lawyer Paul Whitfield answers questions on CCTV Employment Law.

As an Employer can I use CCTV to Monitor my Employees?

Q: I want to put CCTV cameras in the office to watch staff. Do I need to tell them?

A: CCTV is covered by the Data Protection Act and as a result you need to tell your employees unless there are “exceptional circumstances”. This means only where there are grounds for suspecting criminal activity or equivalently serious misconduct. It should be targeted and stopped once that investigation is completed.

cctv employment law CCTV Employment Law: Using CCTV to Monitor Employees

Q: I just want to use it to make sure people are working hard.

A: Then you would need to give the employees clear notification that you were going to do and why. You should consider if the adverse impact would justify the benefits.  The Information Commissioner has produced guidance (Deciding whether to use CCTV or continue using CCTV) at http://www.ico.gov.uk. You should refer to that or take legal advice.

Q: Can I use a video recording of an employee walking and carrying shopping when they are off sick with a bad back to dismiss them?

A: In a recent case employers did this and the dismissal was held to be unfair. The Tribunal did not say that the video evidence could not be used but said it was not enough on its own to justify a dismissal. A lay persons interpretation of the film was not enough evidence to dismiss the employee. A proper investigation and fair hearing would still be required but the video could be part of that.

 

For more details on CCTV Employment Law Paul can be contacted on 0161 283 1276 or paulw@foxwhitfield.com.

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Fox Whitfield is regulated by the Solicitors Regulation Authority  – Roll Number 524972

Fox Whitfield’s Head Office is based in Manchester with offices throughout the UK to help and advice on CCTV Employment Law.