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Employment Law Update | June 2023
Welcome to the latest edition of our employment law update.
As always please don’t hesitate to contact James Austin if you have any questions arising from the news items below.
In the News
Chancellor of the Exchequer suggests working from the office should be the default
Speaking at the British Chambers of Commerce’s Global Annual Conference on 17th May 2023, the Chancellor said it was “something for businesses to find their own way through”, but he was worried about the loss of creativity when people are working from home permanently and not having the opportunity to bounce ideas off each other as they would if they were working from the office.
While it was acknowledged by the Chancellor that home working created “some very exciting opportunities” where workers were able to use programmes like Microsoft Teams and Zoom to conduct remote meetings and it helped parents with childcare and those with mobility issues, he felt the default should be to work in the office unless there’s a good reason to work from home.
At the start of the pandemic, businesses had to quickly consider and adapt to flexible options for working, however since the ease of lockdown restrictions, while some businesses have asked their staff to return to the workplace, others have opted for “hybrid” working patterns which could entail a mixture of office and home working. In February, figures from the Office for National Statistics suggested that 28% of workers split their week between the office and home, while only 16% worked entirely from home.
The Recruitment and Employment Confederation reported that there were just over one million job postings in April that included “flexible”, “remote” or “hybrid” working.
It was also revealed by a recent survey conducted by consultancy firm Deloitte that 71% of millennials and 77% of UK Gen Zs would consider changing jobs if their employer asked them to return to the workplace full-time. So it seems employers looking to follow the Chancellor’s position may be faced with some challenges in what for many is a difficult market to recruit in.
Anxiety, a growing concern in the workplace
Anxiety affects how people think, feel and act, potentially impacting on how they interact with others and make decisions. It can stem from a range of different causes such as workplace stress or personal and family matters like getting married or divorced, having a baby, or dealing with a bereavement. Both physical and mental health can be impacted potentially affecting productivity at work.
Stress, depression, and anxiety accounted for more than 50% of all working days lost in 2021/22 and it’s therefore crucial for employers to be able to recognise the signs of anxiety to put in place support for those who may be struggling.
Anxiety could be deemed as a disability under the Equality Act 2010 depending on the effect and level of impact it has on an individual’s day to day life. Therefore, not acting or failing to make adjustments for someone experiencing anxiety could put employers at risk of claims for discrimination.
Some signs that could warn an employer of someone experiencing workplace anxiety can be: -
- Mood changes, for instance sadness or irritability
- Physical symptoms such as headaches, muscle tension, loss of appetite or stomach aches
- Insomnia, trouble sleeping, fatigue or exhaustion
- Increase in absence levels or tardiness
- Decrease in productivity or quality of work
- Lack of concentration or difficulty in making decisions
- Excessive worry, fear, or apprehension about work-related issues
- Avoidance of work-related situations or tasks
There are various steps an employer can take to help address issues and provide support to someone experiencing workplace anxiety. For example, an employer could: -
- Touch base with individuals on a regular basis
- Promote and champion a culture that empowers individuals to have conversation and be open about their mental health
- Deliver empathy and emotional intelligence training to managers as a first step towards breaking the stigma that is often associated with mental health
- Appoint mental health first aiders in the workplace and ensure they have appropriate training
- Put measures in place and offer support to help relieve any strain in the workplace once an individual has raised issues
- Review existing policies and procedures regarding bullying, discrimination, or harassment and where necessary seek to update such policies
- Consider offering an employee assistance programme (EAP) to the workforce as part of the benefits. If this benefit is already in place, consider reminding and signposting the benefit to the workforce
- Consider allowing flexible working options.
In the Law
ICO publishes guidance for businesses and employers on Subject Access Requests
The right of access, or as frequently referred to as a subject access request (SAR), provides individuals the right to request a copy of their personal information held by organisations. This include information about where the organisation obtained the data from, what the data is being used for and who it’s being shared with.
On 24th May 2023, the Information Commissioner’s Office (ICO) published guidance in the form of “SARs Q&A for employers” and a blog for businesses and employers on subject access requests.
The new guidance is available on the ICO website and provides answers to questions like “When can we withhold information?” and “Do we have to comply with a SAR if the worker has signed a non-disclosure or settlement agreement?”.
Between April 2022 and March 2023, the ICO reports receiving over 15,000 complaints regarding subject access requests following which the ICO’s Policy Group Manager has said that “many employers are misunderstanding the nature of subject access requests or underestimating the importance of responding to requests”.
Further draft guidance is expected from the ICO as it continues to carry out a lot of work surrounding employment practices and is publishing draft guidance in stages. The ICO is currently analysing responses to its recent consultation on workers’ health information and monitoring at work which closed earlier this year.
New Family Friendly Legislation given the green light
Recently, three new Acts of Parliament have received royal assent meaning there will soon be more protection for parents and those with caring responsibilities in England and Wales.
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023, as mentioned in our February 2023 Employment Law Update, will allow new parents the extension of existing redundancy protections while on maternity, adoption or shared parental leave during pregnancy and for a period of time after returning to work.
The Neonatal Care (Leave and Pay) Act 2023, as mentioned in our March 2023 Employment Law Update, will allow eligible employed parents up to 12 weeks paid leave in addition to other entitlements such as maternity and paternity leave and pay, if their new-born baby is admitted to neonatal care.
The Carer’s Leave Act 2023, as also mentioned in our March 2023 Employment Law Update, will create a new statutory entitlement to one week of flexible unpaid leave per year for those employees who are caring for a dependent with a long-term care need.
Commencement dates for each new entitlement are yet to be confirmed but we’ll let you know when they are.
It’s crucial to note that once these new entitlements come into force, employers will need to consider updating any existing family friendly policies they have in place in addition to updating the “other paid leave” clauses in their employment contracts which have been a requirement in employment contracts for new employees since April 2020.
In the Courts
Unfairly Dismissed for providing paracetamol tablets and a hot water bottle to a tenant
Mrs Rebecca Tarlow worked as a House Manager for the Jewish Blind & Physically Disabled Society between December 2017 and March 2022. Mrs Tarlow’s day to day duties included making daily call rounds, responding to emergency alarms, and taking care of ill tenants.
Mrs Tarlow was aware that her employer had a “Professional Boundaries” policy which prohibited staff from administering any medication or fitting any medical appliances to the tenants.
On Friday 25th, Saturday 26th and Sunday 27th February 2022, Mrs Tarlow received repeated calls from an elderly tenant, who was suffering from severe dementia and had been in bed following a fall, saying that she was in pain. Although Mrs Tarlow refused to provide pain relief on numerous occasions, on Sunday 27th February 2022, she provided the elderly tenant two paracetamol tablets with a glass of water and a hot water bottle, for pain relief. Following this, Mrs Tarlow informed the tenant’s carer that she had provided two paracetamol tablets and a hot water bottle.
The following day, following a complaint from the tenant’s niece regarding her auntie being given two paracetamol tablets and a hot water bottle, Mrs Tarlow was suspended from work and a disciplinary hearing was held in which she accepted providing the tenant paracetamol tablets and a hot water bottle, contrary to the professional boundaries policy.
Further, Mrs Tarlow said that she learns from her mistakes and realised that “giving in” to the tenant was wrong, although she explained that she had mitigated the risk of burning and scalding by checking the temperature of the hot water bottle on the back of her hand and making sure it was not dripping or faulty.
On 15th March 2022, Mrs Tarlow was dismissed for gross misconduct on the basis that she breached the professional boundaries policy and placed the tenant at risk of an overdose and burns and scalding from the hot water bottle.
The Tribunal awarded Mrs Tarlow £17,266.74 in compensation after finding that, whilst she had breached the policy, she could not have been fairly dismissed for gross negligence as the paracetamol provided to the tenant was not enough to cause an overdose and she had checked the water bottle for scalding. Furthermore, it was noted that the employer’s policy suggested that a breach of policy would lead to disciplinary action and did not warn employees that it could lead to dismissal.
It’s clear from the outcome of this case that whilst the employer was not obliged to accept Mrs Tarlow’s version of events, it did need to consider her explanation and have a reason for either not accepting her account, or for not accepting that her actions had sufficiently avoided the risk of scalding.
IT Worker ordered to pay costs after unsuccessful claims of sexual harassment, discrimination, and unfair dismissal
Mrs Karina Gasparovav worked as project manager at the London office of essDocs EMEA Limited under the Co-Head of the company, Mr. Alexander Goulandris.
Last month, a Tribunal dismissed Mrs Gasparovav claims for sexual harassment, discrimination, and unfair dismissal, ordering her to pay £5,000 in respect of costs to her former employer for failing to comply with tribunal procedures.
Mrs Gasparovav claimed that Mr. Goulandris’ use of “xx”, “yy” and “????” in an email in which he was seeking more information was a coded way of seeking sexual relations with her and that email correspondence from Mr. Goulandris insinuated a desire to engage in sexual acts. Mrs Gasparovav further claimed that she was being treated badly by Mr Goulandris as a result of her rejecting his advances.
Furthermore, Mrs Gasparovav claimed that Mr Goulandris shouted at her, undermined her in meetings with clients and that key elements of her work were removed. She claimed that in November 2019, Mr Goulandris touched her leg with his leg under the table and “stared at her” making her anxious and uncomfortable and that in March 2020, during a work call, Mr Goulandris gave her “leering looks” as he ran his hands through his hair and stared at her in between asking questions.
Mrs Gasparovav further claimed that in May 2020, Mr Goulandris renamed a work file ‘ajg’ as an abbreviation of “a jumbo genital”. Although, the Tribunal heard that Mr. Goulandris’ middle name is John and that it was his habit to add his initials AJG to the names of documents he had reviewed.
In April 2021, Mrs Gasparovav raised a detailed grievance against Mr. Goulandris, however after this was rejected, she appealed the outcome, which was again rejected, ultimately leading to her resign from her employment in July 2021.
In rejecting the claims, the Tribunal said that “Ms Gasparovav interpreted entirely innocent work-related conduct, some of it accidental, by Mr Goulandris as having a sinister intent” and that Mrs Gasparovav has a “skewed perception of everyday events” after misinterpreting “innocuous” interactions.
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