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What starts off as an office moan can quickly escalate, with the most serious cases resulting in a discrimination claim. In this episode of TLT's employment law podcast, we look at three of the "hottest" issues you might face this summer and throughout the rest of the year, including:
We also look at the latest news headlines including tribunal system delays and the legality of positive discrimination to improve ethnic diversity, and answer your questions.
Send us your questions for the next episode – email firstname.lastname@example.org or tweet us using the hashtag #TLTemploymentpodcast and tagging @TLT_Employment
Jonathan Rennie: Hello and welcome to episode three of TLT's Employment Law podcast. I'm Jonathan Rennie, a partner and member of TLT's UK-wide employment team. In this episode, I'm joined by Fraser Vandal a solicitor in our Glasgow Office.
Fraser Vandal: Hi, there.
Jonathan Rennie: Also Sarah Skeen, an associate in our Bristol office.
Sarah Skeen: Hello.
Jonathan Rennie: We're now fast approaching the summer holiday season, so today we're going to be talking about summer issues that might affect your business and your employees.
Jonathan Rennie: No matter how diverse your workforce, be they festival goers, sports fanatics, or even infatuated with Love Island like Fraser is, summer is a time where employees can find themselves to be distracted coupled with possible staff shortages due to holidays. This can often therefore be a time when tricky issues arise in the workplace. Clearly in recent episodes, we've talked about chunkier and meatier subjects around the Me Too movement and philosophical belief and discrimination generally. We wanted to have a little bit of a lighter subject today to look at day-to-day practical issues that come up in workplaces over the summer months.
Jonathan Rennie: We're going to look at three top issues. We're going to look at the subject of air conditioning and dress codes. Secondly, we're going to look at holidays where there might be sickness, the difficulties with holiday requests. Thirdly, what happens with employees who are distracted during the summer months and who aren't really focused in their work and the issues that arise from that.
Jonathan Rennie: As always, we'll be answering your questions later on and we'll remind you of how you can submit your questions to the team. First of all, the little bit of a round-up of the news.
Sarah Skeen: Thanks Jonathan. There are three key stories that have caught our eye this time. The first of these is that the latest Ministry of Justice statistics have been released showing the severe pressure that the employment tribunal system is under since the fees were abolished. Many of you, we know, will have directly felt the pain of this pressure, with hearings cancelled at the last minute, no judges available and correspondence not being replied to let alone acknowledged. All of which adds up to additional cost for you, the users of the system. Well unfortunately, these statistics are not good news and show that this pattern is set to continue.
Sarah Skeen: The number of claims grew 6% compared to the same quarter, and by that I mean January to March last year, and more worryingly the outstanding caseload grew by 39%. This means that it's now taking on average 33 weeks to deal with a claim from it being lodged to being heard. This is up from 27 weeks, the same quarter last year. For a system that was designed to avoid lengthy delays in the civil courts this certainly isn't good news. If you're unlucky enough to have a claim lodged against you, it will take a considerable amount of time to be dealt with.
Sarah Skeen: For our second news item, we turned to the world of sport. The English football league have announced that they've introduced a requirement that at least one candidate who's black, Asian, or minority ethic be shortlisted for interview for any senior post. It's an interesting position to take and one that is obviously intended to counter the imbalance at a senior level in football. Positive action is permissible under the equality act where certain groups are disproportionately underrepresented, provided that the recruitment is ultimately based on qualifications and skills. Shortlisting in this way is a positive step which you may see other organizations looking to follow. If it's something you're interested in doing, just make sure that you know what is permissible. Check out our website for more details on this story.
Sarah Skeen: Finally, and one to look out for, an important case against Morrisons supermarket is going to the Supreme Court in November. Last year, the Court of Appeal found that Morrisons was vicariously liable for a serious data breach, which had been deliberately caused by one of its employees who had set out to harm the supermarket. We, along with many other commentators, were very surprised by the Court of Appeal's decision to make Morrisons' liable in circumstances where the court acknowledged that the supermarket had done everything that was expected of it and the individual employee was clearly personally at fault. Recognised not least by the fact that they were separately sentenced to eight years in prison for their part in the breach. It'll be interesting to see what the Supreme Court decide and we'll keep you posted.
Jonathan Rennie: Sarah, what's our first hot topic? Please excuse the pun.
Sarah Skeen: Well, the first issue we're going to look at today is one which in my experience is rife for office moans and that's the temperature. I think everybody has got some experience of thermostat wars. Is it too hot? Is it too cold? Should the window be open? Should it be closed? Should the air conditioning go up or down? There's also the question of those who work outside and whether it's appropriate for staff to work in extreme heat.
Sarah Skeen: Now, I must just say we cannot guarantee any extreme heat this year but most of us will consider that the issue of temperature is a standard office moan really. Recent research suggests that it's actually an issue where gender could play a part. As reported recently by The Guardian, studies have suggested that the design of air conditioning units is actually much more closely aligned to the metabolism of men than women. When tested it was discovered that a woman's optimum working temperature is 24.5 degrees Celsius versus a man's, which is much lower at 22 degrees. It suggests that this is typically because men have more heat generating muscle than women and therefore feel much more comfortable at cooler temperatures.
Fraser Vandal: Is the real suggestion here that we could actually see discrimination claims raised on the basis of sex as a result of the temperature at work? It strikes me as an issue where surely you just can't please all of the people all of the time. Is there anything that employers are actually required to do about the temperature at work?
Sarah Skeen: I think we're really quite a way off from seeing claims in this area and I've certainly never heard any suggestions that this was an issue where gender played a part until this research came out. However, the possibility of uncapped compensation in the discrimination area and an ability to get round the two year limit on service for unfair dismissal claims, we certainly can't rule that possibility out without wanting to fear monger you all. In terms of an employer's actual obligations there are health and safety regulations that govern the temperature of a workplace but they simply state in typical legal speech that the temperature needs to be reasonable. There's no guidance at all on what a maximum temperature might be but it's recommended that there's a minimum temperature of 16 degrees Celsius in an office environment or 13 degrees Celsius if the majority of work requires physical effort. I'm sure we'll all agree actually that both men and women would like to work somewhere warmer than 13 or 16 degrees.
Sarah Skeen: Actually in our experience during the long hot summer last year, we saw employers very much taking a pragmatic approach to this and telling employees that if the air conditioning unit was broken that they could work from home and if their office was overheating or even in some very generous cases, distributing ice creams in the afternoon, sadly not our office I'm afraid though.
Jonathan Rennie: Yeah, Sarah, I personally saw many of our employer clients readily adapting their dress codes to make it clear that employees could wear whatever they considered appropriate to stay cool. Although clearly this has the potential to be open to abuse. The reality was that employees were on the whole grateful of that type of decision that they didn't have to wear suits that day and the employees didn't actually take it too far. As ever, of course, you need to make sure that your dress code is neutral and doesn't open up the possibility of discrimination by, for example, requiring women to wear high heels or skirts in the office. I think pretty much this is one of these areas where communication is key so everybody understands the parameters and boundaries.
Fraser Vandal: Yeah, I would echo that from my experience. It was ridiculously hot in Scotland last year in summer. I know of a couple of my clients who basically said, "Look, wear what you feel comfortable in." There was no real restriction placed on that. What they said was that staff were really on board with it. It was this idea of all staff were essentially having a bit of a privilege of wearing what they wanted and they knew that if that line was crossed in terms of appropriateness, that would be taken away. These types of issues, if everyone buys in, these types of things can go very well.
Jonathan Rennie: We're now going to look at the second issue here that arises often with our clients during the summer months and that's the issue of holiday requests and sickness and how we deal with that. What have you seen over the past few summers Fraser?
Fraser Vandal: I think inevitably the summer months generate a huge volume of holiday requests and questions that flow on from that. What do you do when holiday requests conflict? What do you do when you can't grant holiday to certain individuals? There's a clear issue here for employers and keeping staff happy.
Sarah Skeen: In terms of holiday requests, isn't it just a straight forward question of, "You asked first you get the holiday." So first come, first served?
Fraser Vandal: A lot of employers operate on this basis because of the perceived fairness of it. At first glance it does seem like the fairest way but there are a number of matters that can add other layers of complexity into this. If you take my own situation, for example, I'm married to a school teacher so I personally am inevitably looking for holiday around peak holiday periods. The flip side to that is that I personally have a degree of certainty that a lot of other people don't have because I know when my wife is off and I can get holiday requests in early. You've then got the situation of staff who have families perhaps have young children also need to book holidays around school times. This idea of first come, first served doesn't necessarily suit everyone.
Sarah Skeen: Should those kind of issues make a difference in practice for an employer and how should employers be dealing with this?
Fraser Vandal: I think the first step to dealing with this effectively is having a clear and consistent policy on holidays. Once the policy is in place it's a case of ensuring that it's adopted in a fair and consistent approach. If you want to deal with things in a first come, first serve basis make sure that's clear. If you want to adopt another way of making holiday requests and having them approved, it's important that that's communicated as well.
Fraser Vandal: There's also an area where trust and confidence can play a part. If an individual believes that the policy is being applied to them in a particularly arbitrary way, if for example, a request has been approved and then ultimately withdrawn is an issue where employees are going to feel very aggrieved. Everyone loves their summer holiday and it is an area that can cause tensions to rise. Theoretically, an area where trust and confidence could play a part. I do think it'd be a brave step for employees to resign and claim constructive dismissal on the basis of a refused holiday request, for example. It's certainly, in theory, one that we can't rule out.
Jonathan Rennie: I think one area where the reason for taking a holiday is particularly important would be if an individual is making a request because of a religious festival, for example, let's just say Ramadan. The Equality and Human Rights Commission code of practice makes it clear that employers should always seek to accommodate requests for annual leave for a religious occasion. This could naturally upset other staff that don't have that religious faith and therefore feel that they are somehow disadvantaged as a result. It's a tough balancing act as we know between these competing protective characteristics and it's not necessarily automatic that staff are guaranteed time off for religious festivals.
Sarah Skeen: What about the situation then where someone's asked for holiday? The request is denied, perhaps for a very good reason, but then the individual calls in sick instead. Or perhaps, as I've seen occasionally, the sickness comes on a day when an employee was supposed to come back from work or coincides with a big sporting event over the summer and seems just to you to be a little bit suspect. Can employers do anything about that?
Fraser Vandal: This is unfortunately something that we see on a fairly regular basis. One of the things that really exacerbates this is social media. Even now a good few years down the line from when the first social media cases we're heard employees are still perhaps not realizing the significance of how their postings on social media can impact a work scenario, particularly if they name their employer on their Twitter or their Facebook profiles. If you are an employee and you're calling in sick, et cetera, and there is evidence of the fact that you have perhaps been disingenuous about that, then that can certainly be something that is raised in the context of the workplace.
Jonathan Rennie: Yeah, you're absolutely right. The Facebook or perhaps even the Instagram photos are often what brings it to the employer's attention, aren't they?
Fraser Vandal: Very much so and it causes a real practical problem. If someone's called in sick and an employer has reason to believe that they're not actually unwell then that's potentially a disciplinary situation. As with any disciplinary situation though, it's crucial that nobody involved in process jumps to conclusions. It's inevitable that someone somewhere is going to be sick on the day of the World Cup final. Really as part of the investigation it's important to keep an open mind and make sure that any explanations forwarded by employees are carefully considered and a view taken based on the evidence available.
Fraser Vandal: If you take the situation of someone being due back from holiday and they don't report for work, it could be for a number of reasons. Travel commitments may have changed, flights may have been cancelled, someone's phone could even have been stolen. Staff should always report their absence when they're not going to be in but there are certain situations that may mean that that's not possible. For short-term absences of under a week the vast majority of policies don't require any medical evidence of this. The reality is if they did, they would almost be unworkable in practice because people would have to go to the doctor for every minor ailment that they have that results in them having a day off here and there. From a disciplinary context, you're asking yourself the question, "Can we form a reasonable belief that misconduct has taken please after a reasonable investigation?" Yes, someone may say that they were genuinely sick but if they've got a photo on Facebook or Instagram of them partying abroad, lying on the beach, enjoying themselves, that's really going to undermine arguments like that.
Jonathan Rennie: Yeah. I particularly remember, Fraser, during the Commonwealth Games in Glasgow in 2014 that there was a front page news story there of a lady who was a nursery worker and she was pictured at the opening ceremony I think, holding a Tunnocks teacake and doing a dance during the opening ceremony and she'd been off work for six months and there was much discussion around whether she was malingering or whether she was genuinely unwell. Of course, we do see client experiences with this, it's entirely possible that someone might have, for example, stress, depression, possibly even a social anxiety disorder and a doctor might almost prescribe that they partake in social activities in order to alleviate those symptoms. Clients ought not to jump in and rush to conclusions in this area. I think indeed, Sarah, you have some recent experience of some client advice in this area.
Sarah Skeen: Yeah, that's right. We had a case with a client not so long ago actually where the similar situation to the Commonwealth Games, which was, there was an employee who'd been off sick for, I think it was about nine months with depression, stress at work and somebody saw on Facebook that they were touring the country with their band. Lots and lots of photos of them banging away on the drums in all sorts of locations across the country. Our client was understandably quite aggrieved about that. You know, "We're paying sick pay, you're telling us you're not fit for work yet. Here you are touring the country having the time of your life by the looks of things, that's really not on." They called the employee in question in to talk about this in a little bit more detail and actually the employee turned up with a letter from their GP explaining exactly why for his stress and depression it was absolutely crucial that he be part of his band and that, that was helping his recovery.
Sarah Skeen: As an employer, I completely appreciate that it's a difficult position to be in. It doesn't seem right or fair that somebody isn't fit for work but can tour the country with their band. Yet if the medical evidence that you're presented with is telling you otherwise, there can be very little you can do about that.
Fraser Vandal: Yeah, I think so. I think it's important to remember as well that if you receive a medical note from a GP that is signifying unfitness for work. It doesn't mean that people can't go about their day-to-day lives and particularly with anxiety, stress, depression. Often going about their day-to-day life is what keeps individuals going in these types of circumstances.
Jonathan Rennie: Yeah, I think so. Keeping an open mind to possible explanation's given by employees is the key message here and will help to ensure that a fair process is followed.
Jonathan Rennie: The third area that we're going to talk about, and it's not always limited to summer of course but sometimes the focus is during the summer months, and that's just basically the idea of distractions at work. The summer sports calendar keeps everyone busy. We have the women's football World Cup this year, Wimbledon, Tour de France. Transfer deadline day is also a big thing for football fans and employees can often find themselves distracted by the 24/7 news coverage of that. The more avid sports fans amongst us might even book a day off. Those who do come to work may very well end up being distracted anyway, stealthily looking at their computers or their phones to check the score or even watch it. This all adds up and before you know it, the day has been wasted on distractions.
Sarah Skeen: Absolutely. It's a really common complaint that we see from our clients. Some days people just don't really pull their weight and it can lead to resentment if other members of staff feel like people get away with it and not to mention the potential impact of reduced productivity all the way round the business. The attitude is, "Well, why should I bother to work hard when someone else clearly isn't?" I think can quickly cause problems in a workplace.
Jonathan Rennie: That's right and that's why it's an issue that's worth keeping on top of. One way of doing so is making sure that you have set rules in place about how mobile phones and the Internet can be used at work. You could, for example, restrict the use of personal phones to break time or ask that they are switched off during the day. Or similarly, your IT policy might restrict the use of non-work websites during core working hours and even contain powers to monitor the use of non-permitted sites.
Sarah Skeen: I think of course though we have to accept that some employers might want to be more generous. One thing we've seen, in World Cup years for example, is employers screening big England matches at work and allowing employees to take time off in the day to watch that match. Then they say to those employees, "Well, you do need to make up that time that you took off extra later that day or in the week." I think taking proactive steps like that to screen events or allow employees to access scores and updates might actually create goodwill and a much more positive working environment. It's a little bit like what we were discussing earlier I think on the dress codes. If you give people an inch experience suggest they won't necessarily take the mile. You need to trust people and get some goodwill back as a result.
Jonathan Rennie: I agree with that. The fact is that with that leeway being provided, more productivity can be developed further down the line. It's good for employee relations as much as anything. In my experience it's really all about just taking a sensible approach and I think that's a common theme to these summer issues. There's not necessarily a magic answer to how you have to deal with these issues, it's all about being pragmatic and consistent in how you respond to them. I think communication to staff and consistency is the key. Clearly we'll have offices with different teams, different floors, and it's just ensuring that everybody understands what the parameters are so that everybody can enjoy the summertime in the office.
Fraser Vandal: Another issue that can often crop up in the summer months all be it not one that necessarily jumps to the forefront for HR teams is the issue of staff who regularly work through their holidays. The purpose of annual leave is so that staff can enjoy a break from work, recharge both physically and mentally and then be refreshed when they return. I'm pretty sure we've all come across individuals who are inevitably saying, "Look I'm on holiday for the next two weeks but I'm taking my mobile or I'll answer emails, just let me know if anything crops up." With an ever increasing focus on employee welfare, mental health, wellbeing, et cetera, surely this is a type of practice that could ultimately lead to burn out in the long run.
Sarah Skeen: I think inevitably it could but it is a tough one. Some people can be so immersed in work that putting themselves in a position to go on holiday can often be stressful in itself. They might think that answering the odd email or call on holiday won't be an issue. Actually, they might think it's something that will help them but it can often spiral into much more active involvement. From an employer's perspective, their obligation is to facilitate employees taking holiday. By that I mean allow them to take it, encourage them to take it. I suppose it's really up to the employee whether they do work in that period or not and to what extent.
Fraser Vandal: Yeah. I think an added complexity here is that it's actually very difficult for employers to require staff not to work during holiday and to actively keep tabs on that. I'm personally aware of an organization who changed its policy in relation to work mobile phones to require individuals who needed access to actually have a separate work handset and not use their own personal handset. The reason for that was that there was a growing concern that because work emails were coming through on employees own devices, they were regularly looking at work emails and time off, holidays, out of hours, et cetera and it really created this always on culture and increase the stress levels. I suppose it's a case of short-term pain for long-term gain. Yes, there may be a massive transaction that's going on when you're on holiday or there maybe something that is really key and really strategic and it's understandable that individuals want to be involved in that. Perhaps stepping away, enjoying a lengthy break might actually be much better for health and wellbeing in the long run.
Sarah Skeen: Absolutely. I think that's right. Health and Safety Executive research suggests that in 2016, 12.5 million working days were lost due to work-related stress, depression and anxiety and that's a huge figure. I suppose there's a risk of a cycle in terms of work piling up, increasing, not taking holidays and feeling very stressed as a result. It strikes me as very much being a cultural issue where change probably needs to come from the top.
Jonathan Rennie: I agreed absolutely. As with any type of cultural change, it would take time for changes in behaviour to take place and that's where the importance of good employee relations and communication channels comes into play.
Jonathan Rennie: Finally, we've been asking you to send in your questions during our previous episodes and we're again going to finish up by looking at a couple of those. Just a reminder that you can submit your questions to email@example.com or you can tweet us using the Hashtag TLT employment podcast and tagging @tlt_employment. Any questions you submit will of course be addressed anonymously.
Jonathan Rennie: Sarah, a question has come in relating to discrimination claims. You discussed in the last episode that a reason for an increased focus on philosophical belief could be due to uncapped compensation in discrimination claims. I wonder, since tribunal fees have been abolished, have you seen a significant rise in discrimination claims?
Sarah Skeen: In answer to that, yes, absolutely we have. Now that's not to say that all discrimination claims have merit. Of course they don't, but certainly we are seeing more of them. In some circumstances, individuals feel genuinely wronged and feel very strongly about their case. We're also seeing cases where discrimination claims are being added for tactical reasons that actually have little prospects. Now those tactical reasons might be because the claimant doesn't have the service to bring an unfair dismissal claim or might be to try and get a higher settlement because of the public relations impact that can come from discrimination claims. It gives them increased leverage in settlement discussions. If the discrimination element of a claim can be struck out early where it's got poor prospect, and that's something we'd recommend exploring in those kind of cases and treating very robustly, then it would very much be a big plus for employers generally.
Jonathan Rennie: Yeah, I completely agree. Sarah. The vast majority of employment tribunal cases that come across my desk currently seem to have a discrimination element. Perhaps people are simply more aware of their rights, which is possible given the increased focus on equality at work, but I definitely think the removal of employment tribunal fees has been a contributing factor.
Jonathan Rennie: Fraser, we've also had another question come in relating to philosophical beliefs. The question which you might be able to predict is that given the increased focus on politics in the context of Brexit and a possible further Scottish independence referendum, could this lead to an increase in philosophical belief claims?
Fraser Vandal: I think it certainly could have the potential to increase those types of claims. As we've discussed before, there is a difference between holding a philosophical belief and holding a political view or supporting a political party. We mentioned the case in episode two around Mr McElhaney against the Ministry of Defence and the issue of Scottish nationalism. The reality in that case wasn't the membership or the support of the SNP that was protected in that case it was the claimant's fundamental belief in nationalism and self-determination. Although it is an area where we could perhaps see an increase in these types of claims, there is still a fine line between political views and genuine philosophical beliefs. Even if the equality act is not engaged in those types of scenarios these are divisive issues.
Fraser Vandal: We've seen the impact that Brexit has had on the country. You and I, Jonathan, will be well aware of the impact that the independence referendum in Scotland had a few years ago. These are issues that generate debate, there are issues that genuinely bring up areas of disagreement between individuals. It comes back to that question of what restrictions can you place on discussions on manifesting those opinions and whether they are proportionate and take everyone's interests into account in the circumstances?
Jonathan Rennie: Thanks Fraser.
Jonathan Rennie: On that note, that's it for today's episode. Thank you very much for joining us. Remember to submit your questions for future episodes and please keep letting us know what you think of the podcast. We'll be back with our next episode in a few weeks when we'll be talking about more topical employment and HR issues. Until then, enjoy your summer. Goodbye.
Jonathan Rennie: The information in this podcast is for general guidance only and represents our understanding of the relevant law and practice at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.
18 July 2019
by Jonathan Rennie