Regulations requiring certain employers to report on their gender pay gap (GPG) came into force in 2017.

The regulations affect around 10,000 employers across the UK and the Government Equalities Office has carried out a survey and published a report following the first year of reporting.

Survey Findings

The Government Equalities Office carried out a survey comprising of 900 large employers and the results showed that 82% of respondents believed they had a good understanding of what the GPG is and how it is calculated.

Knowledge of the GPG has improved significantly since 2017, almost doubling with just 2% reporting having a limited understanding. However, attitudes to reducing the GPG varied widely with 23% allocating it a high priority, 45% a medium priority and 29% a low (or non) priority.

The report also notes disparity on opinions regarding the overall difficulty of complying with the reporting requirements. The survey found that 33% felt that they would benefit from additional guidance and 30% found it difficult to comply; compared to 35% reporting that they found it straightforward.

2018-19 Reporting

The requisite GPG reports for this year must be published by 4 April for private sector employers and by 30 March for public sector employers.

Although provision of an accompanying narrative is not a legal requirement, we consider an explanation of the reason for and factors contributing to any pay gap to be useful in managing employee relations and understanding the data. Narratives may include information on reward/pay strategy, comparisons with previously published benchmarks, an update on what steps have been taken to reduce pay gaps and an action plan, outlining future plans to reduce any pay gaps as a result of the analysis.

The research found that the proportion of employers developing a gender pay gap strategy is increasing. Measures that can be used to tackle the GPG could include promoting flexible working and shared childcare, cultural changes and gender-specific recruitment strategies.

For more information, please contact Sarah Martin on 0117 314 5363 or Caitlin Anniss on 0117 314 5264 at Narrow Quay HR

The recent case of Lamb v The Garrard Academy highlights how complicated the question of employer knowledge around disability can be.

 

The Legal Background

Employers have a duty to make reasonable adjustments for employees who are disabled. Under the Equality Act 2010, an employee is disabled if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out day to day activities.

The duty to make reasonable adjustments is triggered when the employer has actual or constructive knowledge of an employee’s disability. Constructive knowledge arises where the employer could reasonably be expected to know of the disability.

The Facts

Ms Lamb, a teacher, began a period of long term sick leave in February 2012. In March 2012, she raised a grievance with the school in which she complained about two incidents involving the Deputy Head.

Ms Lamb’s grievance was initially investigated and upheld by the school’s Head of HR. However, the Head of HR’s grievance report was found to be inadequate by the school’s Chief Executive, Mrs Elms. Mrs Elms did not read supporting documentation appended to the report. In July 2012, Mrs Elms met with Ms Lamb to discuss the investigation and, in this meeting, Ms Lamb disclosed that she had post-traumatic stress disorder (PTSD) due to events from her childhood.

Despite initially saying she would personally deal with the grievance, Mrs Elms later commissioned a new investigation by the school’s new Head of HR. The second investigation was eventually concluded in January 2013 and rejected Ms Lamb’s grievances.

Ms Lamb brought a claim for failure to make reasonable adjustments. The alleged failures related to the way in which the investigation was handled, including that the second investigation report should have been completed before the end of the Summer term and that Mrs Elms should have read the supporting documentation to the original report.

The Decision

Ms Lamb’s initial sick notes in February 2012 cited reactive depression. In November 2012, the school obtained an Occupational Health report which confirmed that Ms Lamb suffered from PTSD and that she had been suffering a period of symptoms since September 2011.

The school accepted that Ms Lamb was disabled due to PTSD but argued that it did not have knowledge, and neither could it reasonably be expected to have knowledge, until the Occupational Health report was obtained in November 2012. Therefore the duty to make reasonable adjustments was not triggered until this time. An Employment Tribunal  accepted this.

On appeal, the Employment Appeal Tribunal (EAT) held that the school had actual knowledge of Ms Lamb’s disability mid-July 2012 when she disclosed her PTSD to Mrs Elms and that it ought reasonably to have known that she had a disability by early July 2012. The EAT therefore held that the duty to make reasonable adjustments arose in July 2012.

The EAT held that the school should have sought to remove the disadvantage to Ms Lamb by properly reading the first investigation report, including the supporting evidence, and building upon that original report so that the grievance investigation was concluded before the end of the Summer term.

Best Practice

This case demonstrates that employers need to be mindful of any information (whether oral or written), which indicates that an employee may have a disability. Such information may give employers actual knowledge of disabilities or give rise to reasonable expectations that they should have that knowledge.

Where an employer has knowledge of a potential disability, it should consider obtaining Occupational Health advice to better understand the employee’s health condition and to assist in discharging any potential duty to make reasonable adjustments.

For more information, please contact Sarah Martin on 0117 314 5363 or Caitlin Anniss on 0117 314 5264 at Narrow Quay HR

In July 2017, Matthew Taylor published his Good Work report into the implications of new forms of work on worker rights and responsibilities and employer freedoms and obligations.

The government has now published a Good Work Plan proposing a number of changes to employment law, and draft legislation for some of the changes has already been released.

Changes Coming Into Force on 6 April 2020

On 6 April 2020, the following employment law changes will be made as part of the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018.

  • Break in Continuity of Employment – The break between periods of employment which breaks continuity will be increased from one week currently to four weeks. This is likely to have the biggest impact on temporary workers as it will easier for them to accrue the two-year qualifying service to engage unfair dismissal rights. Employers will need to track temporary employees more closely and take far more care in ending temporary assignments when an individual has qualifying service.
  • Holiday Pay Calculation of a Week’s Pay – For calculating a week’s pay for holiday pay purposes, the reference period for variable pay will increase from 12 weeks to 52 weeks. This should be a change welcomed by employers as holiday pay calculations will be less exposed to short term variations in pay.
  • Agency Workers – The Agency Workers (Amendment) Regulations 2018 will abolish the exemption which excludes agency workers from the right to equal pay with comparable direct employees if they have an employment contract with their agency which guarantees pay between assignments (commonly known as the Swedish Derogation).

The Employment Rights Regulations 2019

The government has proposed the following changes as part of the Employment Rights (Miscellaneous Amendments) Regulations 2019, which currently has no universal commencement date.

  • Written Statement of Terms and Conditions – Employers will be required to provide employees with their written statement of terms and conditions on the first day of work (rather than within two months) and this right will also be extended to workers. Employers will need to review their recruitment processes and ensure employment contracts are being issued to employees and workers on or before their first day.
  • Aggravated Conduct Penalties – Employment tribunals can currently issue penalties against an employer for aggravating conduct. These are hardly ever imposed. The government proposes to increase the limit on the penalties from £5,000 to £20,000. This will come into force on 6 April 2019.
  • Information and Consultation Thresholds – To encourage engagement in the workplace, the percentage required for a valid employee request for an information and consultation agreement governing how their employer will consult about economic and employment-related matters will be lowered from 15% to 2% of the workforce.

Additional Changes

There are other major proposed changes to employment law within the Good Work Plan which are not currently part of proposed legislation.

  • Test for Employment Status – Currently, the employment tribunals and the HMRC take different approaches to considering whether an individual is an employee, a worker or is self-employed. It is entirely possible that someone might be, for example, a worker for employment law purposes but self-employed for tax purposes. The government is proposing that the same status test is used for employment law and tax purposes and that these tests are ‘streamlined’. Harmonising and clarifying the employment status tests should hopefully make it easier for employers to determine whether an individual is truly self-employed. Employers will need to review all contracts with supposed ‘contractors’ to determine whether the contractor retains their self-employed status under the new employment status rules. This may lead to more individuals being added to payroll and/or renegotiation of contracts.
  • Right to Request Fixed Working Pattern – The government is proposing a right to request a fixed working pattern for those who do not have one. Entitlement to the right will be after 26 weeks on a non-fixed pattern. There is likely to be considerable discretion for the employer to refuse the request, akin to flexible working requests.
  • Tips – A ban on employers making deductions from staff tips.

The government is billing the Good Work Plan as the biggest reform of employment law in 20 years. However, the plan has stayed away from making any detailed proposals regarding the larger changes proposed by Matthew Taylor to tackle the increasing perceived unfairness and unlawfulness within the gig economy and for zero hours workers. It remains to be seen how the government will tackle these pressing employment concerns. At present, the governments proposed changes represent more of a tinker with existing legislation then any form of whole scale reform.

For more information, please contact Sarah Martin on 0117 314 5363 or Caitlin Anniss on 0117 314 5264 at Narrow Quay HR

In October 2017, “Thriving at work: the Stephenson/Farmer review of mental health and employers” was published.

Following this, the Department for Work and Pensions and the Department of Health and Social Care have published a framework to support employers to voluntarily report disability, mental health and wellbeing in their workforce.

The framework is entirely voluntary in nature and aimed at larger employers with over 250 employees. However, smaller employers are also encouraged to engage with the framework as well.

The purpose of the framework is to drive transparency in organisations. Employers are encouraged to provide a narrative explaining the action taken to recruit and retain disabled employees and provide support in relation to mental health and wellbeing in the workforce.

The Stephenson/Farmer review suggested that poor mental health was costing employers between £33 billion and £42 billion per year (namely in relation to sick leave, staff turnover and impact on productivity).

It appears that the issues of disability and mental health and wellbeing is increasingly under the spotlight and it is possible that reporting will become mandatory in the future (although this is not suggested at present). Employers may decide to voluntarily report as a point of best practice and to demonstrate transparency and a commitment to addressing issues arising out of disability and mental health in their workplace. Further guidance regarding reporting is to be published shortly.

For more information, please contact Sarah Martin on 0117 314 5363 or Caitlin Anniss on 0117 314 5264 at Narrow Quay HR

Three recent cases highlight why you should encourage your employees to use their holiday entitlement.

The purpose of Article 7 of the Working Time Directive (2003/88/EC) (the WTD) is to ensure that EU Member States implement domestic legislation that grants workers entitlement to paid annual leave of at least four weeks per year. Article 7 also states that paid annual leave cannot be replaced by payment in lieu – except where the employment relationship is terminated.

The Cases

Kreuziger v Land Berlin and Max Planck v Shimizu: In these separate cases, the claimants were seeking to be paid in lieu of untaken annual leave on the termination of their employment. In Mr Shimizu’s case, he was claiming payment in lieu for untaken holiday entitlement for the current year as well as the preceding year.

Stadt Wuppertal v Maria Bauer and Volker Willmeroth v Martina Brobonn: In both cases, the claimants were the sole heirs to the estates of their late husbands who had died while in employment. They were claiming payment in lieu for annual leave entitlement that their husbands had not taken before their deaths.

Findings

In all three instances, the ECJ have emphasised the importance of paid annual leave as a principle of EU social law from which there may be no derogations. The ECJ also reiterated the aims of the WTD and Article 31(2) Charter of Fundamental Rights of the European Union (the Charter) being to ensure that workers have sufficient rest from the work they do in their jobs and to have a period of relaxation and leisure.

On termination of employment, including when terminated by the death of the employee, domestic legislation should not provide for automatic loss of annual leave entitlement. The employee, or the heir to their estate, should be entitled to payment in lieu for any such untaken annual leave.

Annual leave entitlement from an earlier leave year is not automatically lost just because the employee failed to request to use it. To be able to show that payment in lieu for such leave is not owed to the employee, the employer must be able to demonstrate that they provided the employee with the opportunity to take the leave and made them aware of the circumstances under which the entitlement would be lost.

Although these findings relate to German cases, the effects are relevant to the UK as the ECJ confirmed in all three instances that the rights to paid annual leave under the WTD and the Charter are directly enforceable between private persons and National courts must interpret domestic legislation in accordance with both the WTD and the Charter. Where domestic legislation is entirely incompatible, the WTD and the Charter take precedence.

Best Practice

The findings suggest that untaken annual leave may not automatically lapse at the end of the holiday year, raising the possibility that on the termination of employment, an employee might be entitled to be paid in lieu of their total accrued entitlement (whether accrued in the current or previous leave years).

For the entitlement from earlier leave years to lapse, employers need to be able to show that they have provided their staff with the opportunity to take their paid annual leave. What exactly would qualify as sufficient ‘opportunity’ is not totally clear, however the ECJ noted that employers are required in particular ‘to ensure, specifically and transparently that the worker is actually given the opportunity to take the paid annual leave… by encouraging him, formally if need be to do so while informing him accurately and in good time…and that if he does not take it, it will be lost.’

We would therefore recommend that employers ensure through their policies and HR systems that employees are aware of the need to take annual leave in the leave year it arises, any policy on carry over and  the procedure for booking and taking that leave. We would also recommend including a reminder of the consequences of not taking their annual leave entitlement in these communications.

Employers may choose to have a policy that requires employees to use up accrued holiday after notice of termination has been served. Whether such leave is actually taken will still need to be monitored. These decisions will only apply in respect of the four weeks annual leave granted under the WTD and implemented into domestic law by the Working Time Regulations 1998 and will therefore not apply to the extra 1.6 weeks granted under the Regulations and any contractual holiday entitlement over and above this.

For more information, please contact Sarah Martin on 0117 314 5363 or Caitlin Anniss on 0117 314 5264 at Narrow Quay HR

Free Barrister HR Surgery Events - Narrow Quay HR

Do you have an HR issue you need to tackle?

We are sorry to report that this event has been postponed. If you have a HR issue you would like to discuss, please do get in touch.

We understand that dealing with HR issues can be time consuming and that it can be costly when things go wrong.

Our HR surgery is an opportunity for you (or someone suitable from your Chambers) to sit down with one of our HR experts and discuss a specific HR concern. It might be anything HR related from a tricky performance management issue, a breakdown in a working relationship, employee development or rewards and benefits.

Free Barrister’s Chambers HR Surgery

You are invited to attend our first HR Surgery.

When: Thursday 24 January 2019

Time: 10am – 1pm (book a 30 minute slot)

You will receive 30 minutes free HR support to help you find a solution. This service is exclusive to Barristers and the Chambers within which they operate and builds upon Narrow Quay HR’s partnership with The Bar Council

Who is it suitable for?

  • Barristers
  • Barrister’s Clerks
  • HR & Office Managers
  • Those responsible for managing employed staff within Chambers

To book your free 30 minute slot, please contact the events team:

Hargreaves v Manchester Grammar

Mr Hargreaves had been employed by Manchester Grammar (School) as a teacher since 1 September 2005. In March 2016 a pupil (Pupil A) alleged that Mr Hargreaves had grabbed him, pushed him against a wall and put his fingers to his throat. Prior to the allegation from Pupil A, Mr Hargreaves had not been subject to any formal disciplinary action.

As part of an investigation into the allegations, various pupils and teachers were interviewed. Two pupils corroborated Pupil A’s account and one teacher noted that Pupil A had appeared upset when reporting the incident. However, two other pupils who were interviewed had no recollection of anything unusual.  When the investigating officer interviewed the two teachers named by Mr Hargreaves as potential witnesses, one said she had not been in the area at the relevant time and the other said she had not seen anything unusual. The evidence of the pupils and teachers who had seen nothing were not presented to the disciplinary panel or Mr Hargreaves.

Following the hearing, Mr Hargreaves was dismissed for gross misconduct on 17 June 2016.

Mr Hargreaves brought a claim of unfair dismissal to the Employment Tribunal (ET) and the ET found his dismissal to be fair. Mr Hargreaves appealed to the Employment Appeal Tribunal (EAT) on the basis that, taking into account the career-changing impact of the allegation, the ET had erred in respect of the significance of the evidence gathered from those who had reported seeing nothing unusual.

Mr Hargreaves argued that if Pupil A’s allegation was true it would be highly likely that someone in the vicinity would have noticed whereas, if his account of events was true, those close by would not recall seeing anything untoward.

The Decision

The EAT dismissed the appeal, holding that it was within the band of reasonable responses for the School to decide not to put forward the evidence of the witness who had seen nothing and to dismiss Mr Hargreaves.

The EAT commented that in investigating the incident it wasn’t that the School had not pursued lines of inquiry, it was that they had found that those lines did not have anything to add. The statements given by the witnesses had been considered and the School had reasonably concluded that the evidence  was immaterial and could not assist either the Claimant or the disciplinary panel.

Best Practice

While this decision provides some comfort to employers who have properly assessed the evidence gathered during investigations and decided that some is not relevant, we would still advise that it is in an employer’s interest to present all evidence. Choosing not to do so creates an unnecessary risk of litigation and a finding of unfairness.

This approach is in accordance with the ACAS Code of Practice on disciplinary and grievance procedures, which provides that in conducting a disciplinary hearing it would normally be appropriate to enclose copies of any written evidence, which may include any witness statements, with the hearing invitation.

For more information, please contact Sarah Martin on 0117 314 5363 or Caitlin Anniss on 0117 314 5264 at Narrow Quay HR

Many healthcare practices are facing challenges around recruitment and retention. In particular, we are seeing an increase in the number of experienced GPs retiring early leading to an increase in recruiting less experienced salaried GPs.

Getting the recruitment process right is crucial and will undoubtedly be an important part of any Practice Manager’s role. However, how best to undertake this exercise still remains something of a challenge. In this article, we provide our five top tips for getting it right:

1. Define the Role

Having a clearly defined role is an essential starting point for a good recruitment process. The first step is to analyse the job. Consider what tasks the jobholder will be required to do and think about how the role fits into the overall healthcare practice. Once you have done this, you can draft the job description and person specification documents. Try to remain focussed on the requirements of the role and the specific competencies you want from the individual. And remember your job description and person specification should be realistic and not a wish list.

2. Attracting Applications

Review the techniques you use to you attract applicants and think creatively to maximise your chances of getting the best applicants. The local Facebook groups for example could be a good source of advertising for some roles. Consider whether an employee referral scheme which incentives staff to refer candidates might be worth considering. Research has shown that the wording of some adverts appeals more to men than women. Perhaps think about testing differently worded adverts to see what gets the best response.

3. Managing Applications

We all have unconscious biases which we are unaware of and may not want to admit to. These can reveal themselves in any number of ways, from unconsciously favouring someone who went to the same University as you or being put off  someone because of their accent. The recruitment process can be a fertile ground for these biases to come to the fore and can mean your healthcare practice misses out on the best candidates. Worse still, it could expose your practice to risks of discrimination claims.

Think carefully about how your practice deals with applications. There are a number of easy changes that a practice can make. For example, try, as far as possible, to remove any information that might illicit a bias, such as name, address and age and have more than one person undertake the shortlisting and potentially use a third as a final check.

4. Effective Interviews

Most recruitment processes involve an interview. Structured interviews where the interviewer or panel agree the questions in advance will help to keep the questions on track and avoid the risk of going off track into areas that could cause difficulties, such as discussions around health or childcare. Try to reframe the interview as a fact finding process rather than a decision making one to take some of the pressure off and think about the time of day you hold interviews – research has shown that those interviewed later in the day after a string of earlier interviews are at a disadvantage.

5. The Offer Letter and Contract

Think carefully about the wording of your offer letters. Take specialist legal advice to ensure that your offer letter and any contractual documentation are up to scratch and fit for purpose. These documents are designed to set out clearly the basis of the employment relationship but also to protect the practice, so it is important that you have well drafted and user friendly documents in place that are regularly reviewed.

Our Narrow Quay HR consultants work together with you and your practice, providing you with a flexible range of HR advice and solutions to assist your day to day business which includes recruitment and retention challenges.

For more information, please contact Sarah Martin on 0117 314 5363 or Caitlin Anniss on 0117 314 5264 at Narrow Quay HR

The consultants at Narrow Quay HR are regularly instructed to carry out investigations for clients. Clients may want to engage external HR consultants because the issue is particularly sensitive, because they don’t have sufficient HR capacity in the business or because they recognise that investigations can be time consuming and may therefore pull key staff away from their day to day duties.

The investigations may form part of grievance, disciplinary or complaints processes. The case study below sets out some of the issues we regularly deal with when carrying out investigations, but is not based on the specific facts of one of our cases.

Case Study

A client of Narrow Quay HR, has an administration team made up of approximately 10 members of staff. One of the staff working in the team, Jessica, joined the team less than a year ago. She offered her resignation, writing a letter which referred to bullying, harassment and victimisation by her line manager. Following this, the HR Manager met with her and persuaded her not to resign, and asked her if she would be happy to have her concerns treated as a grievance. She agreed to this and Narrow Quay HR were asked to undertake an investigation into the line manager’s conduct.

Our Investigation

In order to give the investigation structure, the key components of Jessica’s grievance needed to be identified. In this case, it was possible to focus on the nature of the language used by the line manager to Jessica as one broad theme and to also focus on victimisation, in the way that Jessica understood it, in terms of being picked on by her line manager.

Jessica was very nervous about raising a grievance as she feared repercussions. In conjunction with the client we were able to reassure Jessica that she was doing the right thing by raising her concerns, that we were taking her concerns seriously and that the client would act should there be any negative consequences of bringing a grievance.

We then met with Jessica’s line manager. The line manager felt that Jessica’s performance was poor and that she failed to take on board or listen to instructions. She felt that Jessica was overly sensitive and denied her behaviour amounted to bullying, harassment and victimisation.

As part of the investigation we interviewed other employees identified as witnesses by Jessica and her line manager. This enabled us to gather further evidence as part of the investigation in order to consider all of the issues and arrive at our conclusions and recommendations.

The Outcome

Narrow Quay HR prepared a comprehensive investigation report containing an executive summary and  detailed findings, which was provided to the client together with all evidence gathered during the investigation, in an indexed and paginated appendix to the report.

In this situation, where a member of staff has raised a grievance relating to bullying or harassment, we needed to not only to make a recommendation as to whether the grievance should be upheld or not, but also to recommend whether disciplinary action should be commenced in relation to the member of staff accused.

In this case it was found that Jessica had been subjected to bullying and harassment by her line manager and so we made a recommendation that her grievance should be upheld and that the client should commence disciplinary proceedings.

Using our report, the client had a clear route map to follow and was able to progress the matter in the knowledge that a fair and reasonable investigation had been undertaken by an independent third party.

To find out how you can benefit from Narrow Quay HR’s investigation expertise, please contact Sarah Martin on 0117 314 5363 or Caitlin Anniss on 0117 314 5264.

This week we are celebrating Narrow Quay HR’s one year anniversary – thank you to all of our clients and contacts, it’s been great working with you.

It’s been a busy first year at Narrow Quay HR, and we’ve enjoyed working with a range of clients including schools, GP surgeries, businesses and charities. We have been particularly busy with investigations, which have taken us all over the country, and have provided support to panels at a range of hearings. We’ve supported clients with their HR projects, helping with both day-to-day issues and larger, strategic projects. We’ve also delivered training to clients too; on Unconscious Bias, Appraisal skills and Essential HR for Line Managers.

We look forward to a busy year two!