Employment Law e-alert Autumn 2018
7 November 2018
A practical guide on managing personal relationships in the workplace, and a bitesize roundup of recent important Employment Tribunal decisions and headlines.
Romance in the workplace
Many employers find themselves in the situation where their employees decide to enter into a relationship. This can present challenges for employers in terms of ensuring employee welfare and equal opportunities within the workplace:
- If one party holds a more senior or powerful role than the other, this can create a conflict of interests or allow for unfair influence (or the perception of unfair influence or favouritism). This can cause discontent amongst staff and/or affect how those employees in the relationship are perceived, for example, a manager may be regarded as being biased towards their partner which results in his/her team losing trust in them.
- If relationship issues are brought into the workplace, this can result in a lack of productivity, a tense office atmosphere and potentially abuse of positions. Relationships often become the topic of office gossip, which can lead to uncomfortable working conditions.
It is important to strike a balance between your employees' right to a personal life, and your right to protect the interests of the business. Whilst relationships at work can't be prohibited or prevented, they can be managed and we have summarised our top tips below:
- Consider implementing a workplace relationships policy.
The policy should:
a. Acknowledge that the employer does not wish to interfere in the private lives of employees, but may need to take steps to manage any potential risks to the business.
b. Set out what steps these may be, for example, changing line managers or appointing an independent third party to carry out any appraisals or performance-related conversations and decisions.
c. Set out the expectations of the involved parties' conduct, including that their behaviour whilst at work (whether on the business' premises or those of a client, customer or supplier) must be professional.
d. Specify what action (disciplinary or otherwise) may be taken if the parties' conduct is unacceptable or inappropriate.
e. Consider requiring employees to disclose any personal relationships to the HR department in your policy and explain that HR will note the relationship on file, but keep its existence confidential if desired.
f. Reassure staff that the employer is committed to ensuring a fair and appropriate workplace, and will take any conflicts of interest, bias, clouded judgement or favouritism seriously.
- Ensure you have a robust and up to date anti-harassment policy.
This will set the standards for acceptable behaviour and make it clear that sexual harassment is prohibited. Your policy should set out what sexual harassment is, how staff can notify their employer if they feel they are being sexually harassed and how the employer will deal with and respond to allegations. You should also carry out line management training on equality and diversity so that managers know what to do if they receive a complaint and to ensure that your procedures are implemented effectively.
If a specific anti-harassment policy is not appropriate (for example, you are a small sized employer) carry out a review of your grievance procedure.
- Act reasonably.
When considering what steps to take to manage an office romance (if appropriate), ensure you act reasonably to avoid grievances from those in the relationship. For example, moving one employee to another department to avoid the couple from working in same team should be a last resort.
- Promote a supportive culture.
If there are issues stemming from an office romance, it is best that these issues are brought to HR's attention so that any necessary steps are taken and support is provided to minimise the risks of employment tribunal claims. Having an open and supportive culture at work will encourage staff to speak out early on.
What is the current position on the 'gig' economy?
Employers continue to face claims from individuals wishing to assert their employment or worker status. Employees enjoy a full range of employment protection rights, while workers enjoy fewer protections. The genuinely self-employed (such as contractors) have very limited protection. The central question in recent cases has been "who is the individual working for?"
In Pimlico Plumbers v Smith the Employment Appeal Tribunal ("EAT") found that Mr Smith, who had worked with the company for 6 years, was a worker and not a genuine self-employed contractor, because he was obliged to perform his work for the company personally and could not send a substitute to complete it unless the substitute were also employed by the company. Mr Smith had to drive a branded Pimlico Plumbers van, wear a Pimlico Plumbers uniform and carry a Pimlico Plumbers ID card at all times. The company exercised a degree of control over him - he was subject to post-termination restrictive covenants and certain Pimlico Plumbers staff policies. The EAT ruled that as a worker Mr Smith was entitled to certain employment protections including protection from disability discrimination.
Top tip: It is crucial that employers review their contracts or arrangements with self-employed contractors to minimise any challenges as to their employment (and tax) status, and reduce the financial exposure these challenges can bring. To assess status, the tribunal will consider three key questions: does the business have a degree of control over the individual? Does the individual have to provide his services personally or does he have the right to send a substitute to perform his work? Does each party owe mutual obligations to the other? Wilsons can assist you in carrying out a status audit.
Please note: following on from the Taylor Review, the government is proposing to implement higher financial penalties to those businesses that falsely classify employees as workers on more than one occasion.
Last month saw a key development in supporting parents who suffer the loss of a child, with the Parental Bereavement (Leave and Pay) Act (the "Act") receiving Royal Assent. The Act is expected to come into force in 2020.
There has been much debate in the past year over providing greater support to bereaved parents at work, and the new Act is a welcome addition. The Act will provide all employed parents with a day one right to take parental bereavement leave in the event that they lose a child, defined as "a person under the age of 18, including those children who are stillborn after 24 weeks of pregnancy". Under Part 1 of the Act, the employee will be entitled to a statutory minimum of 2 weeks' leave, which must be taken within 56 days of the child's death. Under Part 2, those employees who have a minimum of 26 weeks' continued service with their employer (ending with the week before the week of the child's death), and give the required notice to their employer, will be eligible for statutory parental bereavement pay. Further details on the definition of a 'bereaved parent' and any notice or evidence that the employee will be required to provide are awaited.
Under current employment law bereaved parents are entitled to "reasonable" unpaid time off of work in the event of an emergency involving a dependant, though employers may have policies in place providing paid leave in these circumstances.
Top tip: While there is not yet an obligation to provide statutory parental bereavement leave or pay, it is advisable to put a bereavement policy in place if you do not have one already. This policy does not need to provide for paid leave - simply having a clear policy in place to refer to can provide some clarity at an incredibly distressing time.
Employer's vicarious liability for violent act of employee
In Bellman vs Northampton Recruitment Limited, an employer was held to be vicariously liable for the violent conduct of one of its employees outside of work. Mr Bellman, a sales manager, had been at his work Christmas party, after which he and some colleagues continued their evening at a nearby hotel bar. Among the employees with him was Northampton Recruitment Limited's ("NRL") managing director. When the conversation turned to a recent hire that the managing director had made, Mr Bellman shared his disapproval of the hiring. The managing director responded by stating that as managing director he was responsible for making the business' decisions and paying the staff's wages, amongst other things. When Mr Bellman repeated his criticism of the hiring, the managing director hit him twice, causing a skull fracture and traumatic brain injury which led to Mr Bellman losing mental capacity for handling his affairs.
A claim was brought alleging that NRL was vicariously liable for the actions of the managing director, which NRL refuted. The EAT ruled that the "after-party" had been a sufficient extension of the work environment because the managing director made several references to work, his role and his authority over the employees, leading the court to conclude that there was a sufficient link between the attack and his role at the company, and found NRL vicariously liable.
Top tip: Employers must remember that despite an event occurring outside of the office or usual working hours, it may still be considered 'sufficiently connected' to the course of employment, giving rise to vicarious liability on the employer. Ahead of the Christmas party season, you should make clear to staff your expectations of their conduct at work events, particularly at social occasions like staff parties.
The right to be accompanied
Talon Engineering Ltd v Smith considered an employee's request to be accompanied to a disciplinary hearing by her trade union representative, and subsequent unfair dismissal claim. Ms Smith, a long-term employee of Talon Engineering Ltd ("Talon"), was invited to a disciplinary hearing following an investigation into her conduct at work. Ms Smith requested to be accompanied to the hearing by her trade union representative, as was her right under section 10 of the Employment Rights Act 1996. After an initial postponement, Ms Smith advised Talon that her representative was unable to attend the proposed hearing date and suggested some alternative dates of availability - the closest date being almost two weeks away - but Talon refused to postpone any further. Ms Smith would not attend without her representative, and the hearing occurred in her absence, resulting in her dismissal.
Ms Smith brought a claim for unfair dismissal which the Employment Tribunal found in her favour; stating that though Ms Smith's conduct had been a potentially fair reason for dismissal, the decision to dismiss itself was unfair, hindered by Talon's refusal to postpone the hearing. Talon appealed the decision, arguing that they were not obliged to postpone a hearing if the representative were unavailable for more than 5 working days. The EAT stated that Ms Smith hadn't made a claim for failing to comply with her section 10 right, but instead for unfair dismissal; it ruled that in the circumstances it was unreasonable for Talon not to have postponed the hearing, and the dismissal had therefore been unfair.
Top tip: This decision does not mean that the postponement rule (of up to 5 working days) no longer applies, but it does mean that employers should ensure that they:
- have a disciplinary policy in place that includes a clear procedure for holding disciplinary hearings;
- are following a fair process when dismissing employees; and
- making reasonable efforts to accommodate the availability of trade union representatives to attend disciplinary hearings.
A legal roundup wouldn't be complete without mentioning Lee vs Ashers Baking Company Ltd and ors, otherwise known as the "gay cake" case. Last month the Supreme Court ruled that Mr and Mrs McArthur, the owners of Ashers Bakery ("Ashers"), had not discriminated against Mr Lee, a customer, on the grounds of his sexual orientation. In 2014, Mr Lee, who is gay, ordered a customised cake for a same-sex marriage campaign event, to feature the message "support gay marriage". Though the bakery initially accepted the order, Mrs McArthur subsequently advised Mr Lee that Ashers could not create the cake as it went against their religious belief.
Mr Lee brought a claim for discrimination based on his sexual orientation. His claim was successful in the Crown Court, and again in the Northern Ireland Court of Appeal, but the Supreme Court did not find in Mr Lee's favour. It stated that Ashers would have declined the order from any customer, irrespective of their sexual orientation, because it was the message on the cake that they disagreed with, not Mr Lee's sexual orientation or the orientation of anyone with whom he was associated. Supporting gay marriage did not automatically determine Mr Lee's sexual orientation. Mr and Mrs McArthur could not refuse to serve Mr Lee because he is gay, or supports gay marriage; this would clearly be contrary to the equality legislation. However, they could refuse to create a cake containing a message that they wholly disagreed with.
Top tip: Whilst this related to discrimination in the provision of services, employers are reminded to ensure they have clear equality and diversity policies in place, explaining:
- what harassment, victimisation, and direct, indirect and associative discrimination are;
- the steps it takes to ensure equality between its employees; and
- the action it will take if any members of staff are found to breach the policy.
For any queries regarding these topics and any other employment matters, please contact our Employment team.