Employment Update from Hunter Adams – Q2 2022

We are delighted to introduce our new and revamped Hunter100 employment update.

We hope the update is insightful and helpful, and as always, please do not hesitate to get in touch if you require further guidance and support.

Menopause

The total number of tribunals relating to the menopause has tripled in two years, the Telegraph reports, “Too many policies aren’t taking women’s needs into account, and more and more employees are showing that they are happy to stand up for themselves”.

The subject of menopause has become very high profile over recent years, the last two years in particular.  There is a common misconception that only women in their 50’s are likely to suffer from any difficulties related to the menopause and historically, some employers have been largely dismissive of this.  However, women can suffer from effects of peri-menopause (the beginning of transition towards menopause) for many years and well before their 50’s.

Not all women experience symptoms in the same way or to the same degree, but for some, the number of symptoms can be extremely challenging and at times completely debilitating.  Symptoms range from cognitive to physical and psychological symptoms such as hot flushes, muscular aches, sleep disturbance and tiredness, poor concentration, loss of confidence, memory issues, anxiety and headaches.  The impact can affect not only the individual’s attendance and performance at work, but their family members and colleagues also, and there are things which the workplace can do to help alleviate some of the issues.

With so many women in the workplace and the population living and working longer, it’s important that employers take their duty of care for employee’s seriously.  Failing to act appropriately in relation to this health issue can create a number of problems for an organisation, not least, increased sickness absence and potential risk of discrimination relating to gender and/or age.

It is important for employers to raise awareness of the potential impact of menopause across their employee groups in order to reduce stigma and risk in relation to this issue.  This includes providing information relating to menopause, how individuals may be affected and how they can be supported.  This includes support for partners or close family members or colleagues who may also be affected in relation to an individual going through menopause.

Consider how your organisation can address this issue and experience the benefits across the workforce.  If you would like to review the work environment, current policies, introduce a new policy and/or roll out awareness sessions within the wider employee group and need assistance, please get in touch for further guidance and support.

Fit Notes

There have long been misconceptions for some around fit notes supplied by an employee’s doctor.  In recent years there have been some temporary changes to fit notes as a result of the pandemic and a new version has been introduced from April 2022 which only requires the name of the authorising doctor, rather than their actual signature (the use of signed forms may continue during the period of transmission).  Fit notes can be handwritten or computer generated, if they are sent digitally or printed from a GP system, they will contain a bar code which can be scanned with a QR scanner for you to add to your sickness records.

From 1 July 2022, there will be further changes to regulations to allow nurses, occupational therapists, pharmacists and physiotherapists to certify fit notes, rather than this responsibility sitting with doctors alone.  The BMA has, for some time, indicated that it is not always appropriate for a fit note to be issued by a GP when a patient has seen a different member of the practice such as a nurse or physiotherapist.  This change is effective across the UK and will make it easier for employees to get support and advice from the right place.  It is hoped that this change will take the pressure off GP appointments and contribute to people’s ability to remain in work.

Fit notes tell you whether your employee’s health professional considers them fit for any work in general, or whether they may be fit for work, taking into account specific advice which may not necessarily relate to their current job.  The health professional doesn’t consider whether they are fit for their specific job, therefore if the fit note shows they may be fit for some work, it’s important for you to discuss what possible changes may be required to allow the individual to return to work.

It’s important to consider what intervention may help someone with a health condition to come back to work, and when that may be appropriate.  Many individuals may actually benefit from support and an adjusted or phased return.  This can be beneficial to employers, but where an employee’s fit note only indicates that they may be fit for work and you are not able to accommodate the relevant adjustments, you are not obliged to bring them back to work before they are fully fit to return to their substantive position.  However, if a capability process identifies that the individual’s condition is considered a disability (mental or physical), it will be necessary to look at what reasonable adjustments could be made to support the employee’s return.

There is a common misconception that employers can require some employees to obtain a fit note covering the first 7 calendar days of absence.  However, doctors cannot issue fit notes during the first 7 calendar days of a sickness absence.  During this time employees can self-certify.

It’s important to manage absence for all employees and part of that is to ensure absence details are appropriately recorded.  If you need help with a format for capturing useful information for the self -certification period, please get in touch.  We can also help to produce guidance for line managers about what discussions should be held with an employee returning from sick leave.

Employees can come back to work at any time, even if this is before their fit note expires, it is not a requirement that they go back to their doctor first.  However, with certain conditions and durations of absence, it is recommended that a thorough process be carried out prior to returning someone to work before the end of any fit note.  This can include a risk assessment, for example.  If appropriate changes cannot be agreed, you can treat the fit note as if it says that the employee is not fit for work.

Many employers routinely retain the fit note, however, it actually belongs to the employee and they should keep the original which they may need in relation to benefits or other purposes.  However, you can take a  copy for your records.

If you require any support with any absence cases please get in touch.

Working Across Jurisdictions

With the increase in the use of technology to work remotely accelerating as a result of the Covid-19 pandemic, we’ve increasingly found that many employers are open to allowing employees to work more flexibly than before, including the location that the employee works from. Although there are many advantages for both employees and employers that come with working flexibly , there are a number of challenges that should be taken into consideration before a request is approved, particularly where the employee is requesting to work out with the UK.

Unless a worker is a national of the country which they propose to work from, consideration should be given as to what immigration issues could arise. Also, there can be significant income and corporate tax implications, including where it may be found that an employee working abroad has created a ‘permanent establishment’ for the employer in the country in which they are residing. This could result in the employer owing corporation tax, unexpected tax-related expenses and a risk of being fined for non-compliance.

In addition to tax implications, an employer cannot legally employ an individual in a country where they are not registered, therefore a third party global employer of record would be required.

Another area that many employers do not consider, is the impact on any group insurance policies, including but not limited to pension, life assurance and private medical insurance. In particular, consideration should be given to the employee’s ability to participate in such contractual benefits if they are residing out with the UK. It is important to check the wording of any group insurance policies to determine whether any coverage would be provided to those residing out with the UK.

If an employee’s role involves processing personal data, this could give rise to data protection issues. Consideration should be given to determine whether any personal data is being transferred to another country, this would include where that data is being accessed electronically by the employee.  Where necessary appropriate steps would be required such as putting a data sharing agreement in place.

Employer’s Health and Safety obligations also extend to home-workers, as such, employers do continue to have an obligation to undertake a risk assessment in regard to the employee’s working arrangements and take appropriate actions to address any risks, whilst adhering to any local Health and Safety laws and regulations.

Where an employer has received multiple requests from employees to work abroad, establishing a robust policy that details clear guidance to appropriately manage such requests, and having a process in place to ensure that each request is fairly managed, whilst adhering to local laws and regulations will be key.

If you require any support in regard to considerations for remote working for the UK business from outside the UK, please get in touch.

Employment Tribunals

We often here about claims of sexual discrimination by any gender being dismissed as ‘banter’ in a workplace.  Where individual’s make the decision to raise a tribunal claim, employers are required to demonstrate what actions they had taken to reduce or prevent discrimination.

A recent tribunal case relating to a Chief Inspector (CI) from the British Transport Police, heard that the CI had openly sexually harassed several female employees over a 10 year period.  Actions taken by the CI included making sexist and discriminatory comments and creating a sexualised working environment by displaying pictures on his wall of ‘famous women he found attractive’.

Some of the comments which were made by the CI related to him suggesting that a female colleague had been promoted due to gender and sexuality.  The tribunal also heard that the CI had harassed one female colleague by smelling her hair and made remarks to another female colleague about her appearance, weight and attractiveness. What is considered acceptable behaviour is an ever evolving issue and in order to reduce the likelihood of any worker being treated inappropriately in any way, employers should ensure they have taken appropriate action to help their teams know what is and isn’t acceptable and how certain behaviours can be perceived.

Do you have any concerns about your culture or any individual behaviours in your workplace?  It’s important not to turn a blind eye as failing to take action can increase the opportunity for individuals to be harassed and discriminated against, which also increases risks to the business.  If you have any concerns about any current behaviours, would like to roll out refreshed or new policies, or where you may be considering a review of minimum training and awareness in your organisation, please don’t hesitate to get in touch to chat things through.

Written Statement of Employment Particulars

The requirement for a written statement of employment particulars containing minimum specified details, commonly referred to as a contract of employment, has been required to be issued to employees on or before the first day of work since April 2020.  In a recent tribunal, the employee who had raised the claim was a CEO with no contract of employment.  This was raised as an additional point in the case, leading to the tribunal awarding an additional 2 weeks capped pay equalling just over £1,000.

Although an employee can raise a stand-alone claim relating to not having a suitable statement, where a tribunal then determines what should have been included in the statement is deemed to have been given, there would be no financial compensation awarded.

However, if an employee has raised a specific claim relating to unfair dismissal, equal pay or discrimination, and they include details of not having an appropriate statement, the tribunal can award between 2 and 4 weeks’ pay (at the statutory capped rate) in addition to any other award made relating to the claim.

Employee Relations Support

• Practical HR advice around how to get to your desired outcome, taking account of employment law and managing risk
• Independently managed investigations, leading the process and providing a thorough and detailed report of findings and recommendations
• Support with drafting employee communications and specific management guidance
• Coaching managers step-by-step on how to approach employee relations issues, which increases skill level, confidence and ownership of issues
• Strategies to help reduce absenteeism
• Independent mediation, offering a safe, effective and confidential process for all parties in dispute to find their own solutions and reach agreement.
• Attendance at meetings either remote or in person dependent on location, situation and budget