Can you ask about criminal records during the recruitment process?

Recent research by the charity Unlock reveals that nearly 75% of national companies continue to ask about criminal records as part of their job application processes, and 22% of potential employers are still asking unlawful or misleading questions. 80 employers were surveyed, 77 of whom had application forms for jobs. Of those 77, 70% asked about criminal records on the forms and, of them, 80% gave no guidance on when a criminal conviction becomes spent.

So what does the law say? Under the Rehabilitation of Offenders Act 1974 (ROA), to all intents and purposes spent convictions are irrelevant in application processes and candidates may, if asked, respond as if those convictions did not exist. An employer refusing a job on the basis of a spent conviction would be in breach of the ROA, although the Act gives candidates no actual mechanism to challenge such decisions. Unspent convictions are different – candidates can legally be asked to declare those and be questioned about them, and employment may be refused on account of them. Cautions, it should be pointed out, are spent immediately.

The situation was complicated somewhat by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, which listed certain occupations (including doctors and others in the medical profession, vets, members of the legal profession, accountants, teachers, judges, police officers, probation and prison officers, taxi drivers, those who work with children or vulnerable adults and air traffic controllers) as still requiring candidates, if asked, to disclose spent convictions or cautions other than “protected” spent cautions and convictions. The Order made it legal to refuse employment as a result. Application forms should make clear whether a post is excepted from the ROA.

With the advent of GDPR this has become a still more difficult matter for employers. As there must be a demonstrable necessity to process criminal records information whenever it is done, it is unlikely that it would be lawful at application stage. Therefore, to comply with the Data Protection Act 2018, employers should only question candidates about spent convictions or cautions at all, on application forms or in interview, if is directly relevant to the post on offer and that post is in an excepted occupation or profession. Even then there must be a GDPR policy in place that is communicated to candidates. This must set out a clear legal reason why this data may be processed, how it will be processed and, in due course, how it will be erased. The candidates’ legal rights in relation to the data must be explained.

Where unspent convictions are concerned there is more scope to ask questions, but employers should still give careful consideration to whether the information is actually relevant to the job and, if so, they should ensure that the legally required policies are in place and clearly communicated.

Have a question? Contact Alison via email for more information.

The dangers under TUPE of changing terms and conditions

Under the rules of the Transfer of Undertakings (Protection of Employment) Regulations 2006, it was unlawful to change an employee’s terms and conditions of employment if the sole or principal reason for doing so was the transfer itself or a connected reason that was not economic, technical or organisational. The more recent 2014 TUPE regulations narrow this down to being unlawful simply if the sole or principal reason for the change is the transfer.

In the recent case of Tabberer and others v Mears Ltd and Others before the Employment Appeal Tribunal (EAT), a number of electricians originally employed by Birmingham City Council (BCC) had been subjected to a series of TUPE transfers, ultimately to Mears Ltd in 2008. From their time at BCC up until that point the employees had received payments of Electricians Travel Time Allowance (ETTA), but Mears Ltd wished to discontinue the payments as outdated and unjustified. An earlier tribunal had decided that the entitlement should stand, so Mears Ltd gave formal notice of their intentions on the grounds that the allowance was inappropriate, did not support the needs of the business, and was unfair on the rest of the workforce.

The employees took the matter to a tribunal, arguing that a TUPE transfer was the reason for the variation, but their claim was rejected so the matter progressed to the EAT. The employees argued that the original, pre-Mears Ltd, tribunal, which had upheld the entitlement to the allowance, had a TUPE transfer as its subject matter and, therefore, there was a continuing link. The EAT, however, found that this earlier litigation had set the context for Mears Ltd’s decision but was not the reason for it. The reason, the EAT held, was that the allowance was outdated and unjustified and that this was a pre-existing belief that had originated before the transfer.

The EAT upheld the tribunal’s decision that Mears Ltd’s variation to their employees’ terms and conditions of employment was not void under TUPE.

The ruling serves as a useful reminder to employers of the potential difficulties in making variations to contracts against the backdrop of a transfer. Such variations are possible, but great care must be taken to inform employees correctly of the reasons behind any decision, and to keep meticulous records of the process that has led to them. In essence, employers must look to compile a record of the process on which they know they can rely in any subsequent litigation.

Have a question? Contact Alison via email for more information.

New rules on tipping

As part of its ‘Industrial Strategy’ to curb worker exploitation, the government has announced plans to ensure that employees will receive the entirety of any tips left for them. There is an acknowledgement that many employers already act in good faith in this area, but some do not and it is those that the new plans target.

There will be new legislation soon, following on from the consultation on tipping practices that was begun in 2015. This will set in law what has until now been only a voluntary code of practice.

New rules will stipulate that tips must go to the workers providing the service. There will be a focus on increasing the clarity of billing to ensure that tips are genuinely given voluntarily, and steps will be taken to limit or prevent employers making any deductions from these payments other than for tax.

It remains to be seen how effective any new legislation will be, and particularly whether it will close every loophole used presently by employers to allocate tips to recipients other than those intended by the customer.

Have a question? Contact Alison via email for more information.

ICO fees – enforcement action

The Information Commissioner’s Office (ICO) has recently sent out notices of intended fines to organisations that have yet to pay the fees that they owe for processing personal data. At present all organisations doing this must pay a fee to the ICO unless they are exempt. The ICO has made a fee calculator and guidance notes available to assist organisations to calculate what, if anything, they owe. The fine notices have been sent to both public and private sector organisations including the NHS, government organisations and recruitment firms.

If an organisation was registered before 25th March 2018 for data-processing, so under the Data Protection Act 1998 rather than the 2018 Act incorporating GDPR, no fees are payable until that registration has expired. If not, three tiers of fees apply depending on the size and turnover of an organisation and whether it is a public authority or charity. Broadly speaking, small organisations pay £40, medium sized organisations £60, and large organisations £2,900. The fee calculator explains how the tiers are defined.

The fees are intended to fund the ICO’s data protection work and the services it offers, and came into force on 25th May to coincide with the Data Protection Act 2018. Failure to pay is now a civil offense under GDPR.

The organisations that have received notices of intended fines have 21 days in which to respond. The action stops if they pay, but fines may be issued if they ignore the notices or refuse to pay. There is a range of fines from £400 to £4,000, but under certain circumstances they may reach £4,350. More notices are expected to be issued soon, the ICO says.

Have a question? Contact Alison via email for more information.

The dangers of automatic unfairness in TUPE transfers

In the recent case of Hare Wines v (1) Kaur (2) H & W Wholesale the Employment Appeal Tribunal (EAT) held that the dismissal of an employee two days before a TUPE transfer was automatically unfair, even though it was partly due employee’s personal circumstances.

Ms Kaur was a cashier for H & W Wholesale who was dismissed two days before H & W’s stock and employees were transferred under TUPE 2006 to Hare Wines. Ms Kaur’s original tribunal claim for automatic unfair dismissal came about because she had a difficult working relationship with a colleague, Mr Chatha, and she believed that Hare Wines wanted to avoid his having to manage her so dismissed her. Both Hare Wines and H & W Wholesale argued that the reason was, instead, Ms Kaur’s objection to the transfer The tribunal upheld Ms Kaur’s claim, believing that she would have transferred had she not been dismissed and that the transfer was, therefore, the reason for her dismissal.

If an employee is dismissed by either a transferor or a transferee purely on the grounds of the transfer then it is automatically unfair, but a tribunal must decide this in light of the individual circumstances of specific cases. If an employer can argue satisfactorily that dismissal would have occurred irrespective of the transfer then it is not automatically unfair and the dismissal must be examined on its own merits.

In this matter the original tribunal concluded that Ms Kaur’s dismissal was on account of Hare Wines anticipation of ongoing problems with her. Hare Wines appealed to the EAT, arguing that the dismissal was personal to Ms Kaur and unelated to the transfer, but the appeal was dismissed.

It rejected an argument that the existence of purely personal reasons for the dismissal precluded its being automatically unfair, expressing concern about the potential implications of such an argument for future TUPE tribunals, and held that there was no evidence to suggest that the original tribunal had viewed the matter incorrectly or applied any wrong tests. Secondly, it held that there was significance in the fact that Ms Kaur’s dismissal occurred within two days of the transfer. It was too great a coincidence. If, as the employers suggested, the reasons for the dismissal were unrelated to the transfer, the EAT felt that the dismissal would have occurred at another time.

The case has highlighted how carefully employers must proceed in dismissing an employee at the time of a transfer. The existence of a personal reason for dismissal will not ensure against the possibility of a tribunal making a ruling of automatic unfairness.

Have a question? Contact Alison via email for more information.

Government consultation on the ethnicity pay gap

A recent government consultation explores the possibility of mandatory ethnicity pay reporting. Following general underlying principles similar to the reporting obligations on the gender pay gap, it questions what information should be reported, and by whom. Consultation ends on January 11th 2019.

A phased introduction of reporting is envisioned, prior to anything’s becoming mandatory, and a significant part of the consultation is to decide what type of ethnicity pay information should be reported. The balance to be struck is between having sufficient information to take action when necessary, and avoiding placing too heavy a burden on employers.

The possible options are reporting the average hourly earnings of ethnic minority employees en masse, compared to those of a percentage of white employees, reporting average hourly earnings for different ethnicity groups compared to those of a percentage of white employees, or reporting by pay band to show whether there are concentrations of ethnic groups in particular pay bands. There are pros and cons to each of these options.

There is also a need to discuss whether the reporting should be limited to information on pay, or whether it might be more useful were it to include information on geographical, age or gender variations. Furthermore, if disparity is identified, should there be a need to publish an action plan to address the issue?

If implemented legislation is expected to apply to organisations employing in excess of 250 people, but this is not definite and various thresholds are offered in the consultation including one that covers all employers.

The consultation accepts that there would be many challenges thrown up by mandatory reporting, especially if the information generated is to be usable in a meaningful way. For example, individuals are not legally required to disclose the ethnicity with which they identify, if asked some will not identify with any of the categories offered as options by employers, standardising approaches to classification may incur costs to employers who have established systems that have to change, and there are some looming question marks relating to GDPR.

Nonetheless, the consultation is seeking views on what classification systems employers are using at present and what can be done to improve accuracy of reporting among numerous other discussion points. The potential good news, if you are an employer concerned that this may affect you, is that the government is proposing to offer support similar to that offered for gender pay reporting.

Have a question? Contact Alison via email for more information.

Carers face discrimination in the workplace, says new report

According to a newly published report by Unison, 47% of 3,000 UK public sector workers surveyed believe that employees with responsibilities as carers for adults or children are discriminated against in the workplace today. 88% of the subjects had found themselves needing to provide care at some time, and 78% believed that staying in a job was harder as a result. 17% quit altogether, 32% took unpaid leave and 9% had taken an hourly pay cut. In total 76% felt forced to make significant alterations to their careers, and 14% said that they had been turned down for promotion or had felt unable to apply for it because they were carers.

Unison’s Assistant General Secretary, Christina McAnea, has said how important it is that employers do everything possible to help the huge proportion of the current workforce affected to manage, and provide help and support where needed. In addition to workers who need to juggle the responsibilities of parenthood, we cannot ignore the fact that our increasingly aging population is going to mean more and more adults of working age having responsibilities for caring for elderly relatives.

Denise Keating, CEO of Employers Network for Equality and Inclusion (ENEI) has urged employers to consider offering flexible and agile working, returnship and employee assistance programmes, and paid care leave. 95% of those workers surveyed by Unison are asking for such initiatives.

A report by the Work and Pensions Select Committee published earlier this year called for a change in the right to flexible working for carers, making it a day one entitlement as opposed to the current situation in which it is a right only after 26 weeks of employment. Many prominent voices have spoken up in support of the report’s proposals. There can be little doubt that those carers who are not working because they are unable to find jobs that fit around their caring, rather than because they choose not to work, are a huge loss to the economy.

Various government departments are actively considering what more could be done to apply appropriate pressure to businesses, to encourage them to consider such possibilities as flexible working. The objective, of course, is to help the businesses recognize for themselves that the advantages cut both ways.

Have a question? Contact Alison via email for more information.

Mental health in the workplace: employers need to take action now

The publication of Business in the Community’s Mental Health at Work Report 2018 has highlighted how much further many employers still have to go in supporting people’s mental health in the workplace, particularly with regard to unmanageable workloads.

The report does present some positive findings. 45% of employees in 2018 believe that their organisations are doing well in this respect, compared to 40% in 2016, and 30% of line managers surveyed have received some training in the area. However, byt any stretch of the imagination the progress in the right direction is slow.

The Chartered Institute of Personnel and Development’s (CIPD) own 2018 report presents some worrying statistics. 22% of the organisations they surveyed cite mental health as the single most significant cause for long-term absence, as opposed to 13% two years ago, and employees’ reporting of mental health issues has also risen sharply. This may well be a result of the efforts of organisations to raise awareness of the importance of mental health, so may in some respects be a positive sign, but nevertheless it points to an urgent need to do more.

Workload is almost always the major contributing factor to stress, and it is important that we develop a greater understanding of what lies behind such unhealthy practices as staff working when ill for fear of somehow showing weakness. Too frequently, it appears, managers are paying lip-service to these problems, perhaps making the right noises to their staff but then undermining it by their own examples.

If you are an employer concerned that you may not be doing enough to tackle these challenges, or feel that you could perhaps be more effective, the good news is that there is a wealth of material available to assist you to improve. Business in the Community and Public Health England have produced a Mental Health Toolkit, CIPD and Mind have their People Managers’ Guide to Mental Health, and then there is the Mental Health at Work gateway.

With so much information and help so readily available, in such clear and easily digested formats, there is no reason why any employer, no matter the size or type of their business, should feel it appropriate to delay or even ignore taking action.

Have a question? Contact Alison via email for more information.

Vicarious liability: defining where liability does, or does not, end

A recent ruling by the Court of Appeal has reversed a previous ruling in the case of Bellman v. Northampton Recruitment and found the defendant, a recruitment agency, to be vicariously liable for the violent actions of its managing director. At a late-night drinking session in a hotel, paid for by the agency and following a Christmas party where alcohol had also been served, the MD, Mr Major, became angry with one of his employees, Mr Bellman, for questioning his decisions. He punched him, with the result that Mr Bellman suffered a fractured skull and traumatic brain damage.

A judge ruled initially that Northampton Recruitment was not vicariously liable for Mr Major’s actions, but the Court of Appeal based its decision on the nature of his job and questioned the extent of the connection, as the agency’s most senior employee, between that job and his wrongful conduct. It felt that the initial ruling had failed to take sufficient account of the level of power and authority over subordinates entrusted to Mr Major by the agency, the fact that the incident was triggered by an apparent challenge to that authority and the contributing role played by alcohol supplied by Northampton Recruitment.

On the latter point it was found to be of central importance that the incident took place at a follow-on event to the Christmas party, but one where the agency was paying for taxis and drinks. Mr Major was not, therefore, in an environment in which he was operating outside his corporate role, and clearly he had felt professionally challenged and needed to reassert his official authority.

This ruling makes clear the importance of understanding that just because an event is not ‘official’ it does not automatically become a gathering of independent individuals. If the business is picking up the tab for drinks and taxis then the precise where and when of an event will be largely irrelevant and, by default, there will be a liability for what takes place.

Have a question? Contact Alison via email for more information.

How does the ‘gay cake’ ruling affect you as an employer?

The Supreme Court has been called upon recently to rule in the case of a Northern Ireland bakery, Ashers, that had been sued by gay rights activist Gareth Lee for refusing to bake a cake iced with the slogan ‘Support Gay Marriage’. The original ruling, upheld by the Court of Appeal, was that Ashers had discriminated against Mr. Lee. Many expected the Supreme Court to feel the same, but in the event the ruling was in Ashers favour. The bakery had, in the Court’s opinion, been exercising the right to freedom of expression and not discriminating.

The law guards against unjust or prejudicial distinctions on the grounds of nine protected characteristics, of which sexual orientation is one, and defines four categories of discrimination: direct discrimination, indirect discrimination, harassment and victimisation. Ashers was accused of direct discrimination against Mr. Lee because, in the opinion of the Northern Ireland County Court, they had deemed his support of gay marriage to be indissociable from his own sexuality. The Northern Ireland Court of Appeal ruled in the same way, but for a slightly different reason, finding that Mr. Lee was discriminated against because of his association with the gay community and not because he himself was gay.

The Supreme Court’s reasoning for ruling the opposite way was that the bakery had not refused to serve Mr. Lee altogether, only to bake that particular cake, and that they would similarly have refused to bake that cake for a heterosexual customer. Mr. Lee’s further claim of discrimination on the grounds of political opinion, a protected characteristic in Northern Ireland, was refused on the grounds of Articles 9 and 10 (freedom of religious belief and freedom of expression) of the Human Rights Act 1988. The Court found that whilst the bakery could not refuse to supply a cake on the grounds of Mr. Lee’s beliefs or sexuality, the owners were within their rights to refuse to provide one bearing a slogan with which they profoundly disagreed. It was their right to refuse to express a particular opinion.

The ruling has potentially far-reaching implications. In her summing up, Lady Hale stated that the case was, if it was anything at all, one of associative discrimination. Such cases have, to date, been rare, but this ruling may, ironically, have defined their place even whilst finding that there was no associative discrimination in this particular matter. It has also highlighted the subtle difference between discrimination on the grounds of a protected characteristic and discrimination because of issues surrounding that characteristic. Clearly employers and HR professionals will henceforth need to be more mindful of Articles 9 and 10 of the Human Rights Act 1998 as the basis for defending actions that might otherwise be regarded as discriminatory on the grounds that no one may be forced to say or do something derogatory.

But the picture is further complicated by the Supreme Court’s ruling having come on top of two apparently contradictory rulings. Any employer whose employee has been accused of discrimination will, therefore, be well advised to treat the matter with the utmost seriousness from the outset, interview all parties, request written statements, attempt to identify witnesses and treat it as a potential disciplinary matter. This already somewhat confused and confusing legal area will be navigated most easily and effectively by those who are as meticulous and methodical as possible.

Have a question? Contact Alison via email for more information.

Modern slavery: Home Office puts pressure on 17,000 organisations

The ongoing battle to tackle the issue of modern slavery has stepped up a gear in the UK recently, with the Home Office writing to approximately 17,000 organisations to warn them that they risk being named and shamed if they do not publish a modern slavery statement.

Under the terms of the Modern Slavery Act 2015 businesses with an annual turnover of £36 million or more must publish an annual statement on how they have guarded against slavery in their organisations, ideally within six months of the end of the financial year. But the evidence suggests that only 60% of those required to do this have complied, and a number of those who have done so have failed to produce something that meets the basic requirements.

The government has provided guidance on what information such statements should include. Organisations are required to explain their structure and the manner in which their business and supply chains work. They must identify risk areas for slavery and human trafficking within that structure and detail both those steps taken to minimize the risk and their effectiveness when measured against performance indicators. Finally they must publish a slavery and human trafficking policy, explain their due diligence process, and detail what training they offer staff to implement it.

With police in England and Wales reporting a 49% increase in modern slavery offences in the year ending March 2018 compared to the previous year, it is little surprise that the Home Office has seen fit to apply greater pressure. At the same time initiatives such as ‘Tech Against Trafficking’, which aims to ease the burden on businesses by tackling the issue through innovative technology, are making it more and more difficult for organisations to ignore their responsibilities.

Have a question? Contact Alison via email for more information.

Victimisation claims: the importance of defining ‘good faith’

In the recent matter of Saad v Southampton University Hospitals NHS Trust (available here) the claimant, Mr Saad, was a trainee surgeon. There were issues surrounding his performance, but he countered them by raising a grievance. He alleged that he had been described by his programme director as looking like a terrorist, and claimed racial and religious discrimination and abuse. His employer rejected this, removed him from the training programme and dismissed him. Mr Saad took the matter to a tribunal.

At the tribunal he claimed that he had been victimised and unfairly dismissed for having been a whistleblower. The tribunal disagreed with his argument that, where the terrorist comment was concerned, he had made a protected disclosure and a protected act, finding that he had not made either in good faith. The tribunal felt that the grievance had been merely a delaying tactic to avoid a review of his poor performance. Mr Saad took the matter to the Employment Appeal Tribunal (EAT).

There he argued that there is a different definition of ‘good faith’ in making a protected disclosure under whistleblowing legislation from that in claiming racial discrimination. The question came down to whether the evidence given, as a protected act, in his claim for racial victimisation had been given honestly. Mr Saad’s potentially having had an ulterior motive for giving it was relevant, but that was not the point of the enquiry.

The EAT upheld Mr Saad’s claim, ruling that he had genuinely believed that the terrorist comment had been made and had, therefore, acted honestly in making his allegation against the programme director. He may well have had an ulterior motive but, nevertheless, in the opinion of the EAT, he had acted in good faith.

Inevitably this ruling may prove difficult for employers in the future. Unless an employer can prove outright that a disclosure made as a protected act is a deliberate lie and, therefore, in bad faith, it will be difficult to do much about ulterior motives. As the law stands at the moment the reasons why someone is saying something are of considerably lesser importance than whether they believe that what they are saying is true. It is what, not why.

Have a question? Contact Alison via email for more information.

TUPE: how is is affected by a break period?

A recent ruling by the European Court of Justice (ECJ) has posed some interesting questions on the timescale under which the normal rules of a TUPE transfer apply.

The matter revolved around a Spanish music teacher. He was employed to teach in a music school by a contractor that was managing service provision for a local authority. Falling pupil numbers placed the contractor in financial difficulties that led, ultimately, to its ceasing to operate, but not before it dismissed all of its staff. This was in April 2013. The following August a new contractor was appointed and the school reopened in the September, but with an entirely new staff.

The teacher, Mr Colino Sigüenza, argued that under the EU’s Acquired Rights Directive (TUPE in the UK) his employment should have been transferred, but the Spanish court disagreed. It argued that there had been no transfer of an economic entity, because the claimant had been dismissed by a contractor that then ceased to exist, and the new contractor had been awarded the work following a five-month gap and a new tendering process.

The ECJ thought differently. Its ruling is that because three out of the five months of the gap would have been school holiday anyway, meaning the school would have been closed, and because the new contractor was using the same premises and physical resources such as instruments, an argument for a TUPE transfer can be made. The matter has been referred back to Spain’s national court of appeal.

The existing UK TUPE laws are already slightly broader than those in Spain, so here this issue would may have been less contentious, but the matter serves as a useful reminder that the suspension of services or activities for a period, even for several months, does not, in and of itself, mean that TUPE does not apply.

Have a question about TUPE transfers? Contact Alison via email for more information.

CBI guidance: health and wellbeing

Recent research has shown that mental health issues are on the increase in the UK and conscientious employers will, therefore, want to do everything they can to ensure that their members of staff are happy and healthy. To aid them, the Confederation of British Industry (CBI) has published helpful guidance geared towards developing a working culture where mental health is equal in importance to physical health.

Front of mind: prioritising workplace health and wellbeing argues that employers still have not done enough to remove the stigma around mental health issues, and have yet to realize the potential benefits of taking proper steps.

The report finds that, of those businesses and individuals interviewed, 63% see the importance of the issue and 52% recognize that whilst treating problems in the immediate term is important, in the longer term prevention is the goal. However, 71% struggle to see the benefits of steps taken by others and are unsure of what action to take themselves to be effective.

The CBI guidance encourages employers to collaborate with outside organisations as well as to work closely with staff members to both raise awareness of mental health issues and focus on the needs of individuals. It argues for a open, top-down approach to mental health awareness that permeates entire organisations, thereby encouraging staff members to be honest straight away when things are not going well.

Early intervention is often the most effective factor in avoiding a minor issue turning into a major one and, where necessary, a business’s taking a flexible approach to working may ensure that there is a positive outcome for both employer and employee in times of difficulty.

But the CBI’s advice is not just directed towards those in the workplace. There is also advice to the Government to avoid more increases in the insurance premium tax rate, to keep health insurance affordable, and to assess the ways in which pressure on the NHS may be reduced through benefits supporting health and wellbeing in the workplace.

Have a question? Contact Alison via email for more information.

Job references

In newly published guidance ACAS takes its first in-depth look at the issues surrounding job references. It is a comprehensive guide tailored specifically to employers, but with much information for employees as well. Of particular usefulness may be the information on the tricky issue of giving a bad reference, but there is much more dealt with than that.

The guide covers what information must be included in a reference, whether an employer is required to provide one, and whether an employer may give a bad one. In addition, there is a variety of supporting information detailing many of the problems that may be encountered.

Did you know, for example, that a reference from a current employer may only be sought with the applicant’s permission? Do you know what basic facts you should include in a reference if you are asked to write one, and on what you should give comment? If you are a potential employer and you have reason to suspect that a reference received may be inaccurate, do you know what to do? What if you are keen to hire someone but their current employer will not provide a reference? Do you know what legal action you might be opening yourself to if you write an inaccurate reference?

The answers to all of these questions and many more will be found in what is sure to become an essential guide for businesses large and small.

Have a question about job references? Contact Alison via email for more information.

Focus on flexible working policies

Are your flexible working policies up to scratch? What should they cover? We know that we are living in an age in which flexible working is often essential to attracting talent to your business and motivating your workforce. Flexible working and family leave policies are undoubtedly important, but definition of these terms varies from person to person, so how does your organisation work out the right approach?

Your workers may have family or other commitments, or they may simply work more effectively at certain times than at others. Whatever the circumstances, a one-size-fits-all policy would be an impediment to business nowadays. All of the research points to fixed and inflexible working patterns rapidly becoming a thing of the past in many sectors, but it will be for each business to decide on a policy that works.

It is the statutory right of every employee to ask to work flexibly after at least 26 weeks of continuous employment, when they have not made a similar request within the last 12 months. A flexible working policy document should be drawn up setting out this right. Employees should be aware of their various options for flexible working, which may include working remotely, job sharing and part-time working.

In the case of formal requests, there should be a proper procedure in place. The process is quite complicated due to the extent of the information that the employee is required to provide and the format in which it is expected to be given, so devising a standard form and publishing it as part of your policy will be of great benefit to all concerned. You should also confirm that all requests will receive due consideration and set out a timescale up to three months for the entire process, including time for appeal. Refusal should be for legitimate and stated reasons.

Finally, there should be a clear reference where necessary to a trial period for new arrangements, and an unambiguous explanation of what will happen once that trial period comes to an end in the event that the new working pattern proves acceptable.

It should be added that in many cases businesses allow ‘informal’ requests outside the parameters of statutory rights, for which it is also good practice to have a proper application and decision-making system in place.

Additional information and guidance on all of these matters has been published by Acas in its guide ‘The right to flexible working’.

Have a question about flexible working policies? Contact Alison via email for more information.

Refusing to postpone a disciplinary hearing may make dismissal unfair

At a disciplinary hearing employees are entitled to be accompanied by a chosen companion. What happens, however, if the employee requests a postponement because that person is unavailable at the specified time of a hearing? The rules are that if the request is to postpone to a date within five days of the original then the employer must agree. The employer is not necessarily in breach of the Employment Relations Act (ERA) 1999 if they refuse to reschedule outside that time frame, but they may still be opening themselves to a claim for unfair dismissal.

In the recent matter of Talon Engineering v Smith, Ms Smith was an employee of a motorcycle parts company who had been accused of gross misconduct and suspended. Owing to illness and a holiday, she requested a rescheduling of the initial disciplinary hearing. That request was approved and the meeting rescheduled, but Ms Smith wished to be accompanied by her union representative and he was unavailable on the proposed new date. He emailed Talon, explaining that he was unavailable and why, and suggested some possible alternative dates that fell two weeks after the proposed one. The request to reschedule was refused, Talon proceeded with the disciplinary hearing in Ms Smith’s absence, and she was dismissed. She appealed, but Talon felt that the evidence for the gross misconduct was compelling and they stuck by their decision to dismiss her without notice.

Ms Smith then turned to an employment tribunal to claim for unfair dismissal. Both that tribunal and the subsequent appeal tribunal upheld her claim. Section 98 of the Employment Rights Act 1986 sets out a range of reasonable responses available to employers. In this case it was considered that, as the requested postponement was only fairly short, Talon had acted over-hastily in dealing with someone who had, prior to that point, a 21 year unblemished record. They had been unreasonable by not doing more to ensure that Ms Smith could have her union representative present.

There are some important points for employers to take away from this. Firstly, this was an unfair dismissal claim, not a claim for a breach of Ms Smith’s right to be accompanied. If an employer is in breach of the right to be accompanied as set out in section 10 of the ERA, then almost certainly any subsequent dismissal will be procedurally unfair. However, the opposite is not necessarily true and any tribunal will examine whether an employer acted reasonably.

Secondly, context is key. Any request to postpone must always be considered and never dismissed out of hand without thought. Refusal may still be appropriate. There may be clear evidence of delaying tactics, or the employee may clearly be attempting to cause deliberate inconvenience. Alternatively there may be circumstances where there has already been a long delay. However, employers do need to be mindful that to refuse a postponement request requires them to be on very secure ground, because an unfair dismissal claim may easily follow.

Have a question? Contact Alison via email for more information.

Employer and employee rights post-Brexit

The UK Government’s new white paper on the proposed relationship with the EU after Brexit recognizes the importance to UK firms and global investors of the movement of talented workers throughout Europe. Business visits for paid work could, it suggests, continue under certain circumstances, in line with the arrangements for business visitors from outside the EEA. Intra-corporate transfers may be permitted and there is a stated intention to secure onward movement opportunities for UK nationals currently living and working in the EU should they wish to change their member state of residence in future. A further white paper, giving greater detail on a host of immigration-related matters, is expected this autumn.

In addition to the white paper, the Home Office has published an assistance toolkit for UK employers to assist them in working with immigrant members of staff who wish to apply to stay here after March 2019.

The Government has made clear its intention to maintain the employment laws and workers’ rights currently in effect post-Brexit, and has proposed a joint UK-EU commitment to non-regression of standards and an adherence to obligations arising from International Labour Organisation commitments.

In the event of a no-deal Brexit a recent Government note on workplace rights confirms the same commitments, the only proposed changes being minor tweaks to existing legislation reflecting the UK’s new independent status. The note explains, however, that there will be more significant impact in the areas of European Works Councils and the rights of EU-based employees of UK firms in the event of a firm’s bankruptcy.

On the issue of data protection in the event of no deal, the note states the Government’s commitment to allowing the free-flow of data to the EU to continue, but explains that in order for the flow to continue in the opposite direction the EU would first need to make an ‘adequacy decision’ about the UK. The current stance taken on this by the EU is that such a decision cannot even be considered until the UK has actually left, so there may be a period during which companies would be required to identify a legal basis for transfers. In the majority of cases this would involve the use of the EU’s standard contractual clauses.

As and when we know more, we will keep you updated.

Have a question about employer and employee rights? Contact Alison via email for more information.

Bereavement leave

The new Parental Bereavement (Leave and Pay) Act 2018 gives a legal entitlement to two weeks’ leave for bereaved parents from 2020. This will be implemented in stages and, at present, many details are unclear, but we do know that following the death of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy there will be an entitlement to the leave and ‘statutory parental bereavement pay’. The entitlement is unlikely to be for full pay, and the leave must be taken within 56 days of the death. Leave must be taken in one week blocks, but these can be continuous or not, as appropriate.

Where the death of more than one child is involved a separate entitlement will apply to each and, as the regulations are published, it is expected that greater clarity will emerge as to what defines a qualifying parent.

Women are already entitled to up to 52 weeks of statutory maternity leave and/or pay following a stillbirth after 24 weeks, and the death of a child born alive does not affect maternity leave.

As important as this legislation is, you may be wondering what happens about other bereavements – the loss of a parent, spouse, etc. To date the only other entitlement to leave of any kind following bereavement has been a limited period to deal with such practicalities as arranging a funeral. This is covered by the Employment Rights Act 1996 but, importantly, it makes no allowance for the grieving process and gives no right to compassionate leave.

The Equality Act is important to consider here as, under its terms, employers are expected to make reasonable allowances following bereavement, to guard against treating certain employees more favourably than others, whatever the reason, to make allowance for religious observances, and to be willing to adjust as reasonable for the potential effect of bereavement on an employee’s mental health. Employers are also, of course, expected to act as appropriate to reduce stress at such times.

For many employers the new legislation may add nothing to the compassionate leave policies they already have in place. In May 2018 ACAS published guidance in ‘Managing bereavement in the workplace’ and this may prove of great use to employers in times of uncertainty. What no legislation or policy can fully address, ultimately, is that each person deals with bereavement in their own way. The conscientious employer will always, therefore, work with the employee to ensure that they are supported and treated as fairly as possible without causing detriment to the business.

Have a question about bereavement leave? Contact Alison via email for more information.

When is notice not notice?

A tribunal ruling in the recent matter of Levy v East Kent Hospitals University NHS Trust has shone a light on the potential problems arising when an employee gives notice and then, for whatever reason, changes their mind.

In this matter Ms Levy was an employee in the hospital’s records department, where she was unhappy. She applied for a position in another department, got the job subject to certain checks, and gave one month’s notice to the head of the records department. The date of her departure having been agreed, the offer of the new post fell through because of Ms Levy’s sickness record. She then asked to withdraw the notice she had given to the records department, but the manager refused on the grounds that he felt that in open competition he would not offer her a job. Whereupon Ms Levy, stating that she had never intended to resign, just to change departments, claimed unfair dismissal.

At the ensuing tribunal and again at the appeal it was agreed that Ms Levy’s intentions had been sufficiently vague as to be genuinely problematic. She had ‘given notice’, but because she had not used words and phrases such as ‘resigning’ or ‘terminating the contract’ it was argued that her actions had amounted to little more than notifying her manager of her plan to change departments subject to the successful outcome of the checks made on her record. She had not clearly indicated any wish or intention of leaving the employ of the NHS and, in the opinion of the tribunal, the NHS had thus acted unreasonably.

In general, if an employee wishes to withdraw a resignation they cannot do so unless the employer agrees. The lesson to be learned from this particular matter is of the importance of context. The ruling has placed the responsibility firmly on employers to look at the precise context of a letter giving notice and, in instances such as transfers to another department within the same organisation, double-checking may be needed if it is any way unclear as to what the employee is actually proposing to do. Likewise, should an employee resign in anger because of a stressful situation, good practice will be to give the person a day or two to calm down and then enquire as to whether they really intended to act as they have.

In a matter such as this a mistake can, it is clear, lead to a successful claim of unfair dismissal. It is, therefore, always best never to assume anything if there is even the slightest grey area.

Have a question? Contact Alison via email for more information.

Apprentice winner claims 85% of interviewers admit to asking “off limits” questions

Research conducted by HRS, the recruitment firm run by former Apprentice winner Ricky Martin, has revealed that 77% of interviewers surveyed do not consider asking whether a candidate is planning to take maternity or paternity leave in an interview to be potentially illegal. 40% think it an acceptable question, 36% think it inappropriate but no more.

Knowing whether a question is technically legal or not – it is not, technically, illegal to ask about plans to have a family – should be less significant than simply knowing what sort of questions are best avoided. If you do ask such questions and then do not appoint the person, you may lay yourself open to accusations of discrimination. Do not, for example, ask about health matters unless the job in question would be impossible for someone with a particular physical difficulty, and stay off the subjects of pregnancy and childcare by working on the assumption that the person would not be sitting in front of you if they didn’t think they could work the hours required.

Every candidate in an interview process deserves the same chance. Achieving this involves more than businesses ensuring that their interviewers ask broadly the same questions in the same order. They may also need to train those interviewers not to make snap judgements based on initial impressions. The HRS research found that 47% of those surveyed had never had any official training on what to ask in an interview.

It should always be born in mind that the law protects job applicants from discrimination and, therefore, doing anything based on an assumption puts your business at risk of a discrimination claim.

Have a question? Contact Alison via email for more information.

EU Settlement Scheme

The government has published an outline of its intended EU Settlement Scheme, dealing with the status of EU nationals already resident in the UK, or who arrive before December 31 2020. These nationals and their families will be entitled to apply for ‘settled status’. A five-year period of lawful and continuous residence will be required. Those who have not, or will not have been, resident for the full five years by December 31 2020 will be entitled to apply for a ‘pre-settled status’, permitting them to remain until the five year point is reached and they qualify to apply for full settled status. That settled status will be an indefinite leave to live and work in the UK, and to apply for British citizenship if desired.

 

To apply, individuals will need simply to prove their identity (e.g. by showing a passport), prove their five years’ continuous residence, and pass a criminal record check. To qualify as having been in continuous residence individuals may not have been away from the UK for more than six months in any of the years counted as part of their continuous five, unless for certain exceptional circumstances. Such exceptional circumstances include pregnancy, childbirth, study and training, but there are others as well. Those applying for settled status who have already been in the UK for five years may not have been absent for more than five years subsequent to their five years of residence.

Employment and benefit records will be checked for all applicants, and in many cases this will be sufficient to prove continuous residence. Where it is not, additional proof may still be filed. The proposed application fee for the scheme is £65 (£32.50 for under 16s), but those EU nationals who already hold valid permanent residence or leave to remain documents will be entitled to exchange them for settled status free-of-charge. There will be no charge to move from pre-settled to settled status.

Online applications will open in phases from late 2018, becoming fully open from 30 March 2019 and remaining so until the 30 June 2021 deadline. No physical document will be issued to those granted settled status, the information instead being held digitally. This scheme will apply to nationals of all EU countries except the Republic of Ireland, whose citizens already have a right of UK residence unrelated to the EU. It is also expected to apply to nationals of Iceland, Norway, Switzerland and Liechtenstein, but there is no formal agreement on that as yet.

Have a question about a TUPE transfer? Contact Alison via email for more information.

Who pays a national minimum wage penalty on a TUPE transfer?

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), when a business changes ownership the new owner inherits the old owner’s ‘rights, powers, duties and liabilities’ relating to the employees of the business. This protects the rights of employees to receive the wages and entitlements to which they are due. Excepting criminal liabilities and certain pension scheme benefits, an employee who is owed unpaid wages or other entitlements can claim them from their new employer even if it was the old employer who had failed to pay. This includes failure to pay the national minimum wage (NMW) or national living wage (NLW).

Up to now in claims for unpaid NMW or NLW by old employers, if HMRC imposed a financial penalty (up to 200% of the arrears, to a maximum of £20,000 per worker) it charged part or all of that penalty to the old employer if it was triggered by wage arrears dating from prior to a TUPE transfer. As of 2nd July 2018, however, this has changed, and such penalties will now be charged to the new employer.

As a result of this change due diligence is now more important than ever for prospective new employers who will inherit employees under a TUPE transfer. Careful checking is needed to make sure that all wages and entitlements due have been paid, or will have been by the time of the transfer. An indemnity should also be obtained against any potential claims, penalties or actions, and it is by far the more prudent option to involve a solicitor in the drafting of this. The old employer should also disclose any ‘court or tribunal case, claim or action brought by an employee’ in the previous two years, and warn of any similar action that they may foresee or consider likely in the future.

Have a question about a TUPE transfer? Contact Alison via email for more information.

When is the ‘last straw’ really the last straw in employment law?

In 2001 Mr Omilaju, a former employee at Waltham Forest Council’s housing department, resigned and took his case to court after claiming ‘last straw’ circumstances.

Between 1998 and 2000 he issued five separate proceedings against the council for victimisation, direct discrimination and interference with trade union activity. The council didn’t pay My Omilaju’s salary for July and August 2001. He then resigned in the September and took the council to court claiming for racial discrimination, constructive unfair dismissal, harassment and victimisation. He claimed the refusal to pay his salary had ruined his confidence and trust in his employer, hence it was the ‘last straw’ and drove him to resign.

The Court of Appeal found against Mr Omilaju because his employer said he could have applied for annual leave or special unpaid leave, but he chose not to.

 

What is the ‘final straw’ or ‘last straw’?

The Court of Appeal states that the final or last straw is the last act in a chain or series of acts or incidents that lead to the repudiation of the contract by the employer. The last straw itself doesn’t have to be completely unreasonable, but it can’t be trivial. It’s rare for an employer to come under the last straw act if their conduct is ‘blameworthy.’

 

Questions the Employment Tribunal will ask itself

An Employment Tribunal will determine whether or not an employee has been constructively dismissed using the following set of questions:

  • What was the employer’s last act that triggered the alleged ‘last straw’?
  • Has the employee attested the contract since?
  • Was the act a lone incident which resulted in a repudiatory breach of contract?
  • Was the act part of a series of acts which resulted in a breach of trust and confidence?
  • Did the employee resign partially or wholly because of the single breach?

Have a question about a ‘last straw’ case? Contact Alison via email for more information.

When does contractual notice take effect if there isn’t an express term?

Contractual notice takes effect on the date that the employee is aware of the termination.

The reminder comes about after the case involving the redundancy of Mrs Haywood from her position at the Newcastle Primary Care NHS Trust. She went on annual leave to Egypt from 19th April until 3rd May 2011.

Her employer sent her three letters about her redundancy but she only managed to read one of them on the 27th April 2011. The case arose because if Mrs Haywood’s notice period expired after her 50th birthday she would receive a higher pension – which would mean notice of termination had to be after the 26th April 2011.

The High Court ruled that the notice of termination only went into effect once she had actually read the letter of dismissal. This means she was entitled to the higher pension as she read it after the 26th April.

 

So, what can we learn from this?

The case reiterates to employers that the practices around redundancy and letters of dismissal should be clearly explained in the employee’s contract. Specifically, employers should ensure:

  • Contracts of employment clearly spell out how notice should be given and when it is officially ‘received’ by the employee
  • If critical notice cannot be given in person, a letter should be sent by courier
  • If you don’t currently have contractual terms then notice should be given in person to avoid confusion
  • If notice is given by email then turn on delivery and read receipt notifications, as well as asking the employee to acknowledge receipt of the email.
  • Always post a notice by registered mail
  • Factor in the employer’s scheduled annual leave before sending their notice

Need guidance on contractual notice issues? Contact Alison via email for more information.

Thinking about an agile working environment? Here are a few starter tips…

With 58% of people in the UK believing that working away from the office would help improve their motivation levels, is agile working the new way forward?

Here are a few tips if you’re considering offering agile working to your employees…

  1. Define agile working

It’s true that agile working can mean different things to different companies. It’s up to you to define an agile working environment. This could include home-working, hot desking or flexible hours. It’s also important to outline new processes such as using technologies and protocols. For example, will you be using monday or Basecamp? Or creating your very own project management system?

  1. Determine who will benefit from agile working

Not all departments will benefit from agile working – sales, for example, may prefer to stay in-office as they thrive on friendly competition from their colleagues to meet targets. However, creative departments may fare better working out of office as it may encourage them to come up with new ideas as they’ll be situated in a less constrictive location.

  1. Provide support to agile workers

Agile working can open up some problems – people may be more distracted while working at home, so it affects their productivity. That’s why it’s important to ensure you give regular support to your employees if they fell they’re struggling with working away from the office.

  1. Talk to your employees personally

Work out whether you want agile working to be an option or compulsory. If it’s the latter then it’s better that you talk to your employees before making the changes, as it could affect their childcare responsibilities or anything else they have going on in their lives. If the changes you want to make are going to affect more than 20 employees and will be made over a period of 90 days or fewer, you’ll need to hold a collective consultation.

  1. Don’t forget to change contracts of employment accordingly

When you’ve gone through all the necessary consultations with employees, private representatives and trade unions, and everything has been agreed, you’ll need to change the contracts of employment. This should include core hours worked, when they need to attend meetings in person, the fact that they are responsible for ensuring they take rest breaks, ensure their environment is distraction-free and so on.

  1. Compliance with confidentiality and data protection laws

It’s vital that you ensure all paper and electronic documentation is kept confidential. If staff are using their own laptops you should ensure they have proper malware and anti-virus software installed. All employees must also make sure their passwords are long with multi characters.

 

A note about formal flexible working or remote working requests

If an employee has been working for you for at least 26 weeks then they have the right to formally request to work flexibly. This doesn’t mean you have to accept it if it will adversely affect your business, but you can’t make them explain why they want to work flexibly.

 

Got a query about agile working? Contact Alison via email for more information.

The Gender Pay Gap: potential risks to watch out for

Gender Pay Gap data has revealed that 80% of private companies pay female staff an average of 9.7% less than their male staff. So it’s vital to know the potential internal and external risks that could arise in the future.

 

Data subject access requests

Employees can lawfully make a data subject access request if they want to view personal data related to pay levels. If you don’t comply with their request, your company could incur GDPR penalties. The gender pay gap report has raised public awareness, so more of your employees could be making data subject access requests in the future.

 

Equal pay confusion

The definition of equal pay can be tricky to define, which could lead to an increase in grievances from female employees with regards to why they are being paid less. Be prepared to justify why pay differs for the various roles across your company, especially if your overall pay gap is high.

 

Reputation

When the gender pay gap report was published, it made the headlines. As a result, some companies received bad press that has affected their relationships with customers, suppliers and other stakeholders. An effective strategy to remedy this if you have been affected is to ensure all staff receive diversity training including unconscious bias training.

 

Next steps to address the Gender Pay Gap

The government started an enquiry this year with over 250 employees on their views about the gender pay gap. This included information such as:

  • Are the current sanctions for non-compliance with the gender pay gap actually effective?
  • What requirements should companies adhere to in order to address the gender pay gap?
  • Is there any further information needed to support the gender pay gap report?

 

Would you like to discuss how you can bridge the gender pay gap? Contact Alison via email for more information.

Springboard Injunctions: are they necessary for stopping employees from competing against you?

If your former employees try to set up a competing business, you can set up a springboard injunction to counteract their business activity. But does it always work?

A recent case involving Aquinas Education Ltd and Miller & Ors involved the Court lifting a springboard injunction on two former employees from setting up a competing business.

The two defendants were former employees of Aquinas and decided to set up a competing business called Link3. They took information from Aquinas’s IT systems such as CVs and school contact details. Link3 approached the candidates and even successfully managed to place some candidates in schools.

The Court placed a temporary injunction on the two former employees but at a later hearing the Court was asked to determine whether or not to allow a prohibitory injunction, a springboard injunction or both types of injunction to continue.

A springboard injunction is where the defendants are prevented from benefiting from their head start (in this case using the CVs and contact details they obtained).

A prohibitory injunction is where the defendants are prevented from using their former employer’s confidential information.

The Court endeavoured to restore each company to the competitive position they would have been in if Link3 hadn’t obtained the confidential information. The verdict was that the injunction currently in place had already done its job, as Link3’s ‘head start’ had already ended and minimal profits were made.

 

What does this mean for your company?

What we can learn from this case is that it’s vital to ensure all employee contracts contain restrictions from setting up a competitive company for a certain period of time post-employment. If you haven’t already put this in place, then you could get a springboard injunction although this should be used as a last resort. The case also teaches us to keep tight security measures on information, data and other confidential details.

 

Do you need advice on springboard injunctions? Contact Alison via email for more information.

Reference writing: avoiding risky material

Appropriate reference writing has hit the news again in light of the case of a negligent misstatement in the form of a negative reference provided about an employee from his employer.

The Claimant, an independent financial advisor previously employed by Co-operative Independent Financial Solutions (CIFS), breached company protocol twice. The first incidence was accepted as an administrative error and the Claimant was suspended from his role. The second time it happened the employee’s contract was terminated. But when the Claimant tried to find new employment, he found he was unable to secure work due to a negative reference from his employer.

The reference contained negative subjective material and referred to the employee’s suspension, the errors he made within his role and the compensation that was offered to the clients who were affected by these errors.

Section 16.65 of the Employment Statutory Code of Practice states “ [if] a reference is subjective and negative, it is good practice to give the successful applicant an opportunity to comment on it.”

The Judge involved in the case identified certain duties a reference writer must follow:

  • The reference writer must carry out a thorough and objective analysis of the facts and opinions of the individual, while taking into account details from any investigations or times prior to the investigation
  • The reference writer must ensure the facts are 100% true. If there is an opinion, it must be legitimate.

 

What can we learn from this?

This case teaches employers several things with regards to reference writing:

  • Employers must be able to defend any facts or opinions expressed in the reference and they must be prepared to justify their reference should they be called upon in the future
  • Take into consideration any rules that apply to reference writing within your specific industry
  • Ask yourself what information is absolutely relevant and what isn’t.
  • Avoid making assumptions and speculations and stick to frank and honest views
  • If in doubt – seek legal advice
  • Take notes in all disciplinary meetings and follow-up meetings

 

Do you need help with issues surrounding reference writing? Contact Alison via email for more information.

Putting potentially unlawful harassment into context

After the Bakkali vs Greater Manchester Buses case, it’s more important than ever to remember that context can determine whether ‘banter’ or conversations have crossed the line into unlawful harassment.

Moroccan Muslim, Mr Bakkali, was talking to a non-Muslim colleague, Mr Cotter, about an article about the Islamic State. The article itself contained positive comments on the Islamic State’s combat skills and their take on law and order enforcement. Mr Cotter approached Mr Bakkali a few days later and asked if he was “still promoting IS/Daesh?” Mr Bakkali took this very negatively and responded to his colleague in an aggressive manner. As a result, Mr Bakkali was dismissed for gross misconduct.

Mr Bakkali issued a harassment claim for direct discrimination, but the Employment Appeal Tribunal (EAT) concluded that he hadn’t experienced harassment. Instead they ruled that Mr Cotter had made the comment about IS because of the conversation about the article, rather than Mr Bakkali’s race or religion.

The EAT commented:  “to decide what the context is […] it may be a mistake to focus upon a remark in isolation. A Tribunal is entitled to take the view […] that a remark, however unpleasant and however unacceptable, is a remark made in a particular context; it is not simply a remark standing on its own”.

The EAT continued: “[…]words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken. Generally a Tribunal might conclude that in consequence the words themselves are…discriminatory, but [it] is not obliged to do so. The words are to be seen in context”.

Need guidance on a tribunal? Contact Alison via email for more information.

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