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MILS HR Quarterly ReviewBack

HRTribunal Fees

Some welcome good news for employers at last.

The Court of Appeal has dismissed Unison’s appeals against its judicial review applications challenging the legality of tribunal fees.

In short, this means that, for the time being at least, the fees regime (which has proved so unpopular with disgruntled employees) looks set to remain in place.

Whilst “troubled” by the sharp decline in employment tribunal claims, Underhill LJ held that:

“the case based on the overall decline in claims cannot succeed by itself. It needs to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals. Only evidence of this character will enable the Court to reach a reliable conclusion that that the fees payable under the Order will indeed be realistically unaffordable in some cases.”

Whilst accepting that evidence in respect of notional, rather than actual, Claimants could be relevant, Underhill LJ held that the provision in the remission regime allowing for consideration of “exceptional circumstances” meant that it could not be said that the fee system in general was so unaffordable as to mean that there was no effective remedy under European Union law.

He went on to dismiss arguments based on indirect discrimination and the public sector equality duty.

However, the Scottish Government has just recently announced it intends to abolish employment tribunal fees so watch this space for further developments.

Choice Of Companion At Disciplinary Hearing

Was the denial of choice of representative for disciplinary investigation beyond statutory or contractual entitlement a breach of the implied term of trust and confidence?

Yes, on the facts, held the High Court in Stevens v University of Birmingham.

The Claimant academic at the Defendant University was the subject of allegations regarding his role as Chief Investigator to clinical trials of patients suffering with diabetes. He was later invited to a disciplinary investigation. His employment contract entitled him to the statutory minimum choice of representation (trade union representative or colleague).

However, he was not a member of a union, nor did he have colleagues employed by the University suitable to accompany him. He had, however, from the date of the allegations been assisted via the Medical Protection Society (‘MPS’) by a representative, Dr Palmer.

The court held that the University was breaching the implied term of trust and confidence by failing to permit Dr Palmer to represent him due to (a) the objective perception of inequality of arms in the circumstances, (b) the seriousness of the allegations, (c) that the MPS served a similar function to a union and (d) the Claimant had been permitted the assistance of Dr Palmer to that point. The court went on to grant a declaration to that effect.

This decision means that employers will need to reasonably and properly consider requests to be accompanied by persons other than colleagues or trade union officials very carefully.

Getting Communications Right During And After Maternity Leave

Recent research from the Equality and Human Rights Commission (EHRC) suggests a significant proportion of pregnant women experience some form of discrimination. A quarter of women also reported too little contact with their employers during maternity leave.

Under the 1999 maternity and parental leave regulations, an employer is allowed to maintain “reasonable contact from time to time” with an employee on maternity leave. However, the latest EHRC research shows employers may struggle with what “reasonable contact” is. The report says that 21 per cent of employers are in contact with employees a few times a month, 24 per cent several times over a period of months, and the remainder at various – and sometimes less frequent – intervals.

According to the paper, 45 per cent of mothers reported problems with employer contact during maternity leave, the most common problem (26 per cent) being too little contact. Just over 57 per cent of employers in the survey were aware of KIT (keeping in touch) days but only 26 per cent had used them.

Employees on maternity leave can take up to 10 KIT days during their maternity leave: the date must be agreed with the employer, and taking it will not terminate the employee’s maternity leave. Note that either parent may also have 20 SPLIT (shared parental leave in touch days) in addition to KIT days if they take shared parental leave.
Although there is no obligation for an employer to offer KIT days, many find these useful in re-introducing an employee to her job role. Similarly, there is no right for an employee to insist on having a KIT day, or any obligation to accept any KIT days offered.

Any part of a KIT day worked counts as a whole KIT day. The parties should agree in advance what the employee will be paid for a KIT day, and any pay can be offset against the employer’s statutory maternity pay liability. Employers often pay employees their usual contracted rate for a KIT day.

An employer’s contact with employees on maternity leave should be governed by the employee’s preferences, and these can be changed. But employers could, for example, provide employees with company updates, including promotion opportunities, job vacancies or information about any business changes. However, it would not be advisable for employers to provide employees with anything which could be construed as work, or which could cause the employee to worry about her work duties, and this includes any issues which require a response from the employee.

Employers should invite employees on maternity leave to planned social or more formal events, but should make it clear that the employee is not required to attend such events. They can choose to come or not – the choice is theirs. If such events are not events for which employees would usually be paid (for example, a team social outing), then the employee would not need to take this as a KIT day. Conversely, where the event is one for which employees are paid (for example, an away day), this should be offered to the employee as a KIT day and paid.

Once the employee returns to work, employers should take steps to facilitate the re-integration of the employee into her role, ensure she is kept informed of news and events and has the same access to IT and facilities on the same basis as other employees, to avoid allegations of discrimination.

Communications about reorganisations taking place while an employee is on maternity leave are even more important to get right because of the anxiety they generate. Employers should include employees on maternity leave in any updates, even where the employee’s own role is not at risk.

If an employee on maternity leave is at risk of redundancy, however, employers should be careful when selecting their objective criteria, and any pregnancy-related absences (or lower scoring which can be linked to their absence) should not count against them to avoid risks of an automatic unfair dismissal and discrimination.

Employers also need to remember the special provisions contained in the regulations giving employees made redundant while on maternity leave the right to be offered a suitable alternative role ahead of other employees.

Child’s Play: Managing Maternity Discrimination

Research issued last month by the Equality and Human Rights Commission showed that 54,000 new mothers are forced out of their jobs each year. We suggest here some practical ways managers can avoid maternity discrimination and retain female talent.

Figures published in a report from the Equality and Human Rights Commission (EHRC) last month show in detail just how many women face discrimination in the workplace due to pregnancy.

Some of the headline figures were shocking, but it was encouraging to read that 84% of employers believed “it was in the interests of their business to support pregnant women and those on maternity leave” and that “it was important to provide support because it increased staff retention”.

Even from the employee’s view, four in five mothers said their needs were supported ”willingly” while they were pregnant, and three in four of those returning to work said their needs as a new mother were supported.

While we need to do more and continue to support women and working families, we also need to think about how we address potential maternity discrimination on a managerial level.

Managers should think of pregnancy and maternity leave as one of the easiest management issues. For example, how many periods of absence do you have time to manage and effectively recruit for?

Pregnancy/maternity leave is not an obstacle, it is just a case of effectively managing logistics with planning.

If the leadership approach maternity time off in such a way, it will go towards creating a more loyal, stable and productive workforce. Here are some possible ways to achieve this.

Time off for antenatal care

According to the EHRC’s report, 10% of respondents felt discouraged from asking for time off for antenatal appointments.

Many pregnant employees are asked by their employers to schedule their antenatal appointments ahead of time and towards the beginning or the end of the day, but the reality is that most are just told when the midwife is available and given a time to attend.

It is not easy to manage the time and usually the clinics are near the individual’s home. Often, the answer is to permit the employee to work from home that day, so they can fit the appointment around work.

However, overall, it is important to have a clear lines of communication to ensure that managers/employees can plan as much as possible to ensure minimum disruption to the business.

Treatment pre/during/after maternity leave

As many as 100,000 new mothers a year experienced harassment or negative comments from colleagues, employers or managers when pregnant or returning from leave, the EHRC found.

Any form of harassment or negative comments should be formally or informally addressed. Managers should also consider that leadership sets the tone in a business, and lead by example.

The way a company deals with logistics of pregnancy, maternity leave and return to work should be the starting point.

If maternity leave is thought of as a “pain” or a nuisance then this will flow through the tone of the company and will encourage negative behaviour.

Managers should ensure they are working as a team with employees to address any periods of absence, even giving them ownership of the interim recruitment process.

Return to work

The report highlighted how one woman in 10 said that they were treated worse by their employer after returning to work after having a baby.

Returning to work post maternity leave is a hard transition for most working mothers. In some cases, it is starting a new job again, but with added family pressures and tighter time constraints.

If budgets permit, we would suggest three action points to assist with the transition:

  • Permit the individual to take any accrued holiday days during the first few months back, maybe 1 or 2 days/week. This may mean shorter weeks for the first few weeks, but is helpful in ensuring the returning mother gets back up to speed at a manageable pace.
  • Ensure there is a handover period from the interim cover. This usually takes a few weeks as well.
  • Finally, consider offering maternity coaching with external coaches who work with prospective mothers and new mothers before, during and after maternity to coach them through each transitional phase and make sure they are getting the support they need from the business.

Overall, getting back into work post maternity leave usually takes a month or two and managing expectations on this all round will be helpful for all parties concerned.

Pressure to leave

Sadly, a few women who responded to the EHRC survey said they felt under pressure to hand in their notice. Employees should never be pressured to “hand in their notice”, under any circumstances, as the risk of tribunal claims is significantly increased if this happens.

If the working arrangement is not working, hours need to be changed, days working from home need to be changed, or if the individual’s performance is not at the acceptable standard, the manager needs to deal with such situations via the appropriate procedure.

In addition, I would recommend that any change in working arrangements should be reviewed regularly, maybe every three months for the first nine months back at work, with the right to make adjustments if the arrangement is not working.

Effect on remuneration and opportunities

One in 20 mothers reported receiving a cut in pay or bonus after returning to their job, and even when mothers were given the chance to work flexibly on their return to work, around half said it cut their work opportunities and they felt their opinion was less valued.

It is important employers avoid such an outcome if time consuming and costly tribunal claims are to be avoided.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.

Posted by Leana Kell on 04/09/2015