Did You Know?

By Squire Patton Boggs on September 28, 2015 Posted in Employment Relations, Recent Cases

Last month the Australian Fair Work Commission made its first formal bullying finding since the introduction of new anti-bullying laws at the start of 2014.

The Commission found that two employees of a small real estate business subjected to repeated unreasonable behaviour by a property manager had been bullied at work within the meaning of the Fair Work Act 2009 (Cth). Commissioner Hampton also found there was a real risk that the bullying would continue despite the manager being moved to a related corporation at a different location.

The Commission made orders by consent that the protagonists should not approach each other or attend the other business premises. The employer was also ordered to address the organisation’s culture and “broader conduct within” by establishing and implementing anti-bullying policies, procedure and training.

The Commission’s orders serve as a reminder that when bullying occurs, immediate steps should be taken to address it and to ensure that it does not continue, including undertaking a robust investigation where appropriate. Failing to do so may result in an anti-bullying claim and orders which may negatively impact the employer’s business including its reputation. It can be seen that the Commission’s orders can be both granular and overtly interventionist – while they were by consent on this occasion, that might not be the case next time.

The other clear message from these orders is that addressing instances of bullying in a reactive manner as they arise (here, moving the manager) will not always be enough – a proactive pre-emptive approach to the problem will play much better in front of the Commission and may avoid both the costs and embarrassment of a public injunction to clean up your act.

Independent Contractor or Employee? Good Odds for Australian Wagering Group on Appeal

By Squire Patton Boggs on September 25, 2015 Posted in Employment Status, Independent Contractors, Recent Cases

With the AFL Finals fast approaching, the office tips are bound to get a little heated! However, you may want to think twice before taking too big a punt on whether a worker in Australia is an employee or an independent contractor.

In the recent appeal case of Tattsbet Limited v Morrow, the Full Court of the Federal Court of Australia overturned the Federal Circuit Court’s (FCC) decision, concluding that a woman operating a betting agency in Queensland was in fact an independent contractor despite a number of indicators suggesting that the relationship was that of employer and employee.

What happened?

From 2004, Ms Morrow operated a shopfront betting agency for Tattsbet Limited under four consecutive “Agency Agreements”. When Tattsbet terminated the last agreement Ms Morrow commenced a claim in the FCC alleging that she had been an employee of Tattsbet.

The FCC identified several factors pointing to Ms Morrow being an independent contractor, especially Ms Morrow’s accounting to the tax authorities, her remuneration by way of invoices, her Australian Business Number, her freedom to employ others, her negotiation of an enterprise agreement with her employees and her payment of GST tax on supplies provided to Tattsbet.

Despite these factors, the FCC found that Ms Morrow was an employee. It was influenced by factors such as the tight control which Tattsbet exercised over the operation of the agency, the provision of plant and equipment by it, the prohibition on Ms Morrow providing services to similar businesses and her contractual inability to make autonomous decisions about the conduct of the agency generally.

Ultimately, however, the FCC’s decision was based on an “entrepreneur test”, the central question being whether the person performs the work of an entrepreneur (i.e. do they own and operate a business?), rather than applying the traditional “multi-factorial” test embraced by the High Court in earlier decisions.

The Full Court bucks the trend

Tattsbet subsequently spun the wheel again and appealed the FCC’s decision to the Full Court. It successfully obtained an “independent contractor” finding – a welcome outcome after waiting 20 months for the Court’s findings! The Full Court has still remitted Ms Morrows’ adverse action claim back to the Federal Circuit Court to reconsider on that basis.

In its decision, the Full Court held that the question is not whether the person is an entrepreneur but whether the person is an employee. This involves assessing the totality of the relationship between the parties. The Full Court thought that the relationship between Ms Morrow and Tattsbet involved a number of features that, in combination, compelled the conclusion that Ms Morrow was not an employee. These included:

that the last agency agreement was the fourth in a line of similarly-worded agreements each of which clearly stated that Ms Morrow was an independent contractor. Although this was not determinative, it was significant to the extent that it reflected what the parties understood (or at least wanted) the relationship to be;
that Ms Morrow was not engaged or paid for her work alone. Rather, she was engaged to operate the agency and was paid by reference to the value of the business transacted there;
that Ms Morrow was able to employ others and had reached an enterprise agreement with her employees’ trade union;
that her net income was only a third of the gross remuneration she received from operating the agency; and
that not only did Ms Morrow collect and forward GST tax to the Australian Tax Office but she also spent significant time and resources meeting GST regulatory requirements.

The lessons learned

Although the Full Court’s decision may provide some comfort to businesses engaging genuine independent contractors, caution should still be exercised. This is because the distinction between an employee and independent contractor is not always clear and will always depend on the specific circumstances. Businesses which engage independent contractors should ensure that agreements are carefully drafted and accurately reflect the actual relationship between the parties on the ground, and not just the label the parties wish to use to describe that relationship.

Mental health in the City workplace – how are you doing?

By Squire Patton Boggs on September 22, 2015 Posted in Disability Discrimination, Employee Welfare, Health & Safety, Mental Health

No job within the Square Mile is immune from its own stresses or strains. As the City of London Corporation’s Business Healthy blog notes (https://www.businesshealthy.org/blog/), the recent economic climate has exacerbated these through the invariable requirement that businesses reduce their cost base without adversely affecting their profits. Undoubtedly, this drive to do more with less has caused a rise in the number of mental health issues faced by City employees. Sadly, the same drive has also made employees fearful of disclosing these issues in case they find themselves in the next round of cuts.

As Poppy Jaman, CEO of Mental Health First Aid England has identified (https://www.businesshealthy.org/are-businesses-managing-or-marginalising-mental-health/), hiding a mental health issue does not help the employee, his line manager or the employer: the employee subjects himself to further stress by trying to hide the issue; the line manager has to manage an employee who is unlikely to be fully productive, but who is also reluctant to engage on the reasons; and the employer is left with an employee in whom it has potentially invested a great deal of time, training and resource but who is not repaying that investment.

This scenario is ‘presenteeism’, where an employee turns up to work but fails to carry out his role at 100% because of some physical or mental health condition – one survey estimated the cost of presenteeism to UK businesses as in the region of £15bn per year, so it is a significant issue. Of course continued presenteeism is unsustainable, with the common end result that the employee becomes absent from work altogether or that the employer commences performance proceedings, neither of which benefits anybody.

It’s clear, therefore, that not talking about their mental health means that employees are less likely to get support – this lack of support then means that they are more vulnerable to worsening mental health, poorer performance, possible absenteeism and potential dismissal – it’s a vicious circle. So why are employees so reluctant to seek help and speak out?

Despite the best efforts of campaigns such as Time to Change and charities such as MIND and Rethink Mental Illness, the fear of being stigmatised due to mental illness remains a real one. Although some employers, often due more to ignorance than malice, may well have concerns about employing someone with a mental health issue, the majority of employers that we assist take a more enlightened approach. The key thing to remember is that for most employers in the City the employees are the key assets of their business – especially when you consider the amount invested in recruiting, training and retaining them. In the same way that an employer would look to work with an employee with physical issues, employers should (and, for the most part, do) try to find ways to assist and retain employees with mental health issues. They are both just health issues.

How can employers help?

The first way is to recognise that we all have mental health, whether good or bad. Using myself as an example, when I come into work basking in the warm glow of a smile from my five-week old daughter as I left the house, it is fair to say that I have good mental health. Equally, when I arrive tired and irritable after my same daughter has given me another sleepless night, it’s fair to say that my mental health is not in quite such a good place. Whilst this example might seem to trivialise the far more serious mental health problems suffered in the workplace, it is not intended to do so – it is purely used to demonstrate that our mental health affects us differently every day

Secondly, employers can open a conversation. Although they may not consciously do it, our managers friends and colleagues inquire after our mental health, simply by asking “How are you?” The real key, as identified by campaigns such as Time to Change, is whether they listen to the response and how they act on that response. If employees feel that they are listened to and that their needs are heeded at a more general level by the employer, then this will go a long way to making them comfortable in disclosing any mental health issues that they may have.

Some may view this as a utopian vision of the workplace. However, that view is formed from hard experience earned litigating discrimination cases for both employers and employees, as well as personal experiences of struggling to help friends with mental health issues. In nearly every case, both personal and professional, you can identify a point early on where, if someone had just opened the conversation, the situation might have had a happier outcome (and in the professional cases, also avoided costly litigation). Over the last few years we have run a series of seminars with mental health trainers, occupational health and experienced HR staff in which attendees can share their stories and best practice and are given a practical ‘toolkit’ to engage with employees about their issues. These have led to better early identification of potential issues by our clients and a concurrent decrease in the number of disability-related cases that we deal with.

Thirdly, mental health is not just an HR issue or an engagement issue – it is a whole-company issue. The next step for employers is to engage and train not only HR but also line managers and Board members in mental health support, as these are the people who may have the first opportunity to identify an employee’s problems and to open the conversation. The positive signs are that many employers in the City are taking this step – just as they saw in time that physical health is a key driver of employees’ production, they are now recognising that mental health is the next frontier, be it through mental health training for managers, signing up to the Time to Change or Rethink Mental Illness campaigns or through other, innovative ways of measuring employee’s mental health. Adding these visible signs of support to employee engagement programmes can only be a good thing. It is sure to lead to decreases in presenteeism and saved employment costs (in terms of recruitment, training, management time and legal costs).

Considerations for employers when setting up an external whistleblowing hotline

By Squire Patton Boggs on September 22, 2015 Posted in Retaliation, Whistleblowing

This post is the product of an interview with Grant Stevens, Head of Sales, Expolink Europe Ltd http://expolink.co.uk/

What are the main considerations for employers when setting up an externally-managed hotline for the first time?

Like any worthwhile venture, whistleblowing hotlines benefit from forethought and planning. A great deal will depend on the size of your business, the nature of your operations, the countries you operate in and what risks your business and employees are exposed to. We advise clients to consider not only their current risk profile but also what the shape of their business might be within the next five to ten years. International data protection laws vary enormously (and some border on the positively cryptic) so a full analysis of the countries you operate in and intend to operate in, is vital.

A second geographical consideration is the language-related services you require; again taking into account how the profile of your employees and business might change. Where possible, live translation services should be offered as it is not always possible for a caller to make contact at a later point. The service must be as accessible as possible, ideally including 24/7 availability and where country law allows, it should be confidential.

Employers should also seek to identify the goals for their hotline, since this may affect its final form. For most, it is a combination of protecting employees, ensuring good governance, compliance with legislation such as the Bribery Act 2010 or requirements from industry regulators like the FCA, and mitigating risk to their business in general.

If the hotline will complement current internal reporting channels, communication of these processes and employee expectations must be managed well. Some clients opt to have separate lines for HR-related grievances and reports of, say, financial misdemeanour and although nothing terminal usually happens if the two are confused by the employee it is still preferable that guidance is issued as to how to go forwards in any given case.

Employers need to consider the potential barriers to use of the whistleblowing hotline and how these will be overcome. Are there any local laws, customs or cultural considerations that should be considered? Certainly, there are territories, particularly post-communist countries or those that have experienced aggressive regime change where expressing concerns about potentially unlawful colleague behaviour would be a very sensitive matter indeed. In these scenarios, communication needs to be handled carefully and even terminology may be adjusted, using “Speak-up” rather than “Whistle Blowing” for example.

How should businesses assign responsibilities for implementing and managing the hotline?

Again, this is very much dependent on the structure and scope of your business. Some organisations have a whole department dealing with internal audit, compliance and ethics-related activity. Others may have only an Ethics Champion or it may fall under the remit of Human Resources.

After roll-out, the success of the hotline very much depends on engagement and communication with the process. We advise employers to enlist support from different centres of the business, whether that is departmental or geographical. All stakeholders must understand the importance of their role in the success of the hotline and be accountable. The key issue here is substance rather than form – it does not much matter where responsibilities lie so long as the relevant person has both the will and the internal clout to make others act appropriately when the whistle is blown.

How can businesses ensure the hotline is communicated and marketed effectively throughout the business?

Assigning responsibility for the overall communication of the hotline to one of your Ethics Champions is a good idea, as is making awareness of the hotline part of staff inductions. Information given at this stage, however, is likely to be only part of a whole raft of other important resources the new starter is exposed to at the same time so, while this stage is relevant, other tools should be used to ensure awareness remains fresh.

Over the years we have noted success with collateral such as mouse mats and pens with the hotline details inscribed. Posters can be another marketing tool but they should ideally stand out from the rest of the notice board. Wallet cards (about the size of a credit card) are one of the most effective tools as staff can keep these as a handy reminder.

Company intranets are an obvious and effective platform but again, visibility is key, so try not to lose your hotline processes in reams of small print. If you are unsure of awareness levels or concerned that there may be barriers to usage, a simple anonymous survey can help.

UK Trade Union Bill – political or practical?

By Squire Patton Boggs on September 14, 2015 Posted in Employment Relations, Legislation, Trade Unions

As MPs debate the Trade Union Bill (see our initial summary https://www.employmentlawworldview.com/uk-trade-unions-get-the-bill-for-transport-strikes/), the issue for employers is whether the Bill is political or practical and whether the tightening of the rules on picketing will actually backfire, resulting in unions using more unorthodox methods to achieve their objectives.

The Bill has come in for a lot of criticism from many different quarters. In August, the independent Regulatory Policy Committee gave the provisions designed to tackle intimidation of non-striking workers a ‘Not Fit for Purpose’ rating which is the political equivalent of ‘Must try harder’ on a school report but rather more (a) serious and (b) depressing when you bear in mind that this is the product of extensive Government consideration and relates to the economic health of a nation, not 3^rd Year Latin.

In a recent joint statement Liberty, Amnesty International and the British Institute of Human Rights joined with others across the political spectrum (including Vince Cable) in accusing the Government of putting more legal hurdles in the way of unions organising strike action and so undermining workers’ ability to strike to protect jobs and livelihoods. Particular concern was expressed over the Governments proposals in relation to picketing and specifically the provisions intended to protect non-striking workers, which are not as yet actually in the Bill but were the subject of a recently closed (and very short) consultation process.

The Bill will make legally enforceable part of the 1992 Code of Practice on Picketing even though the Code has been operating reasonably successfully for the past 23 years without being legally enforceable. It will require unions to appoint a Picket Supervisor who will wear an armband and show a letter of authorisation on request to the police or anyone else who reasonably asks to see it. That provision, whilst probably not an attractive role for a trade union official, is hardly contentious and enables both employers and the police (and indeed other pickets) to know who to talk to if there is an issue with a picket line. Nonetheless, BBC News Online reports that Paul Kenny, General Secretary of the GMB Union, has indicated that he would be “prepared to go to prison” if the measure (and its associated fines for non-compliance) becomes law. This all seems a little extreme for the sake of an armband. It is not the only faintly histrionic reaction to the Bill, however – the TUC General Secretary says that it threatens “the very principle of the right to strike”, which it clearly doesn’t.

As the consultation document points out, industrial disputes are increasingly delivered through methods which go well beyond the traditional picket – so called ‘leverage’ tactics which often include internet campaigns to get shareholders, customers and suppliers to put pressure on the employer to accept the union demands.

A key question in the consultation document was whether unions should be required to publish their picketing and protest plans 14 days in advance of the industrial action. The plans should include whether the union is planning a picket, if so where and how many people it will involve and whether there will be a loud speaker, props and banners, etc. More significantly in this digital age, it could also include whether the union will be using social media and what those blogs and websites will say. The plan would then be provided to the employer, the police and the Certification Officer – and failure to do so could result in a fine.

It’s clear to see the problems for unions in the Government’s proposals. The issue for employers are that when these measures are combined with the new more stringent provisions on ballot thresholds, unions may just not bother with a ballot but adopt leverage tactics instead. If there is no ballot, the union can email, blog and tweet to its (lawful) heart’s content without having to tell anyone in advance what it is planning to do or say. The TUC General Secretary recently told BBC Radio 4 in faintly ominous terms that “Acas has certainly pointed out the danger that if you suppress that right for people who feel they are being treated unfairly at work to democratically take strike action, then people will find other ways to express that discontent”.

At least with the ballots and the Code of Practice employers had a reasonable idea of where they stood and what the rules of the ‘game’ were; leverage tactics and those “other ways” are far more unpredictable and potentially more damaging to a company’s business interests. But that is not the Government’s problem – it will be able to say that it took steps to limit the number of strikes, especially in transport and other key public services, and anything else is just noise. Whether so narrow a focus pays sufficient attention to the broader contexts of UK industrial relations remains to be seen.

No cause for alarm in ECJ “working” travel time decision

By David Whincup on September 11, 2015 Posted in Employee Welfare, Health & Safety, Recent Cases, Working Time

If you drive from your home to your office and then your office to your client, only the second trip counts as working time for the purposes of the EU Working Time Directive. But what if you don’t have an office and so drive straight from your home to your first customer and at the end of the day, straight home from your last? How much of that travelling counts as working time?

All of it, says the European Court of Justice in Tyco this week in a ruling which makes some sense on its specific facts but nonetheless contains more fudge than Cadbury’s.

The Spanish Courts referred the question to the ECJ because they were unable to determine for Working Time Directive purposes whether that travel was working time or a rest period, there being no middle ground between them in the Directive.

The travelling time between home and the first and last customers of the day contained elements of both, but on the premise that while travelling the employees were not at liberty to do what they wanted, it could not be a rest period and so by definition had to be working time. This is logical in a way but then we have to remember that the Working Time Directive is a health and safety measure. Compare driving straight from home to the first customer with going to that customer via the office, a route which must be presumed to be longer in both time and distance. The same is true at the end of the day – if you go home from your last customer only via the office, then you will be home later than if you had gone direct. However, on the ECJ’s argument, you would count the time out from and back to the workplace only, and not the first and last legs from and to home. As a result, the employee with a habitual workplace will have a longer working day in fact (i.e. notionally a greater risk to health and safety) but a shorter working day in law.

The ECJ made much of Tyco’s decision to scrap the regional offices to which its employees had previously reported daily before setting off on their travels. It was not fair, said the ECJ, that the employees should bear the burden in health and safety terms of that decision. In reality, however, that decision probably shortened the employees’ actual time away from home while its ruling increases the length of their legal working time.

In addition, there is scarily little to prevent the ECJ’s analysis of the nature of that travelling time being extended to cover commuting generally – after all, getting to the office is a necessary part of performing your duties there and no one in their right mind would describe commuting as a rest period. There does not seem any connection between protection of the health and safety of the employee (which the ECJ stressed was at the heart of its ruling) on the one hand and whether the employee has a habitual or fixed place of work on the other. Time travelling to or from work is time travelling to or from work in either case.

So there are certainly logical flaws in the ECJ’s decision, and obviously the case depends to some extent on its own facts. But what does it mean for employers generally in practical terms? Very much less than unions and shouty press headlines suggest:-

(i) the ECJ’s ruling only applies to those who have no habitual or fixed place of work – so if you do have such a workplace, your going on occasion direct from home to a client or back will not make that trip into working time.

(ii) it’s not about the money – working time is an EU health and safety construct, not a UK national minimum wage point. What is working time for one purpose is not necessarily so for the other. There is therefore no obligation on employers to pay for that additional working time as an extra sum.

(iii) the additional working time may place a very limited number of UK employers in breach of the Working Time Regulations’ average hours limits and/or the requirement for 11 hours’ daily rest. That will only be those whose workforce (a) does not have a fixed or habitual place of work; (b) travels direct between customers and home; (c) is already working so close to the average 48 hour weekly limit that this marginal extra time is enough to tip them over it; (d) has not signed a WTR opt-out; and (e) would ever think the point worth taking, especially given (ii) above. The vast majority of UK employers will be completely unaffected by this decision.

Who drove change of disciplinary direction? – When HR’s advice goes too far

By David Whincup on September 11, 2015 Posted in Disability Discrimination, Employment Tribunal, Recent Cases, TUPE

Do you ever think that your line managers are making such a hash of a grievance or disciplinary process that it would be easier to do it yourself? Do you watch in horror as they stumble blindly but unerringly towards what is clearly the wrong decision? Are you tempted to give them a nudge in the right direction?

Then read on before you snatch the reins from the manager’s hands, for all is not as simple as it seems. The Employment Appeal Tribunal in Ramphal – v – Department of Transport has this month put a very clear shot across the bows of any HR function considering intervention into such a process.

Mr Ramphal was accused of over-claiming in relation to his expenses. Conduct of the investigation was given to a DoT Manager, Mr Goodchild, who had no prior experience of disciplinary investigations. He did his best and produced for HR’s approval a report in which he concluded that there were just about tenable excuses for the expenses claims made, that he could not therefore get so far as finding dishonesty, and that Mr Ramphal should get a final warning as a result. By the time Mr Ramphal saw the product of Mr Goodchild’s work, however, the report concluded that Mr Ramphal had been dishonest and that he should be dismissed (which he then was, by Mr Goodchild himself). Weird.

The Tribunal concluded that Mr Ramphal had been fairly dismissed but he challenged this, claiming that there had been insufficient exploration of what had happened between the first draft and the final version to change Mr Goodchild’s mind so comprehensively. What had HR’s input actually been?

Inadequate disclosure and over-vigorous redactions by the DoT left the EAT unclear on this and so Mr Ramphal’s appeal was upheld to some extent – not a finding of unfair dismissal but a remission back to Employment Tribunal to look into that question in more detail, and decide if it prejudiced the ultimate outcome. In particular, was HR’s input of a purely procedural or legal nature (which is perfectly permissible), or did it get into issues of guilt and sanction as well? Those were matters which the DoT’s internal procedures made clear were for Mr Goodchild to decide. The problem is the obvious one – HR had not heard Mr Ramphal’s representations and should not be expressing views on them, and equally Mr Ramphal had not had the opportunity to rebut any additional arguments as to culpability which HR might have given Mr Goodchild. If it becomes apparent back in the Tribunal that the dismissal decision was not Mr Goodchild’s alone, Mr Ramphal’s dismissal is likely to be found unfair.

Lessons for HR:-

As the Department found to its cost here, correspondence between the investigating manager and HR does not attract legal privilege and the Employment Tribunal will resist material redactions. Therefore either keep that correspondence clean, and/or send it via lawyers to preserve appropriate privilege. In the same vein, remember that draft reports will still be disclosable even (especially) if the ultimate conclusions were very different.
Where there is procedural/legal advice to be given by HR, do it in writing. While this will be disclosable, that will not hurt if the advice is “straight”, i.e. not about the specific facts or merits or ideal outcomes of the case in question. It may also reduce the scope for the adverse inferences reached by the EAT here as to the legitimacy of the input made;
Where HR spots points or questions or lines of enquiry which the manager did not, have him go back and raise these with the employee in another mini-meeting if necessary, so that both perspectives are heard before a final decision is seen to be made;
Ideally, set out the relevant legal considerations for the manager in advance. In Ramphal it is possible that Mr Goodchild changed his position because of entirely proper advice from HR as to the relevant burden of proof – i.e. not “beyond all reasonable doubt” as he appeared to believe at the outset, but the much lower threshold of “reasonable belief on the balance of probabilities”. If Mr Goodchild had understood that at the beginning, perhaps this issue would have been avoided;
Consistency of response is important to the fairness of a dismissal, so it would do no harm for the manager to be told at the start about the sanctions usually applicable to different levels of culpability. Swapping intended penalties halfway through the process, on the other hand, will always look like the product of improper interference in the decision;
Last, under no circumstances expressly adopt (or if you must adopt, then at least respect) the Department of Transport’s HR Service Pledge – “we won’t make decisions for you, that’s your job, but we will be there for you”.

Are new mums really being #pushedout in the UK

By Squire Patton Boggs on September 10, 2015 Posted in Discrimination, Employment Relations

The world of social media is alive with debate about the treatment of new mothers in the workplace. Prompted by the results of a recent survey by Britain’s Equality and Human Rights Commission which suggests that 54,000 new mothers are being forced out of their jobs each year, Stylist (a free weekly magazine for women in the UK) introduced a new hashtag #pushedout, asking women for their experiences of discrimination for choosing to have a baby. In the words of the magazine, the “response made one thing clear: there’s a lot of anger out there”.

The statistics from the EHRC survey are on their face certainly concerning; the 54,000 figure is almost twice the number identified in similar research undertaken in 2005 and the survey also revealed that 1 in 5 new mothers experienced “harassment or negative comments” from employers or colleagues when pregnant or returning from maternity leave.

But that doesn’t tell the full story in two important respects. First, what doesn’t come across from the negative headlines is the fact that the same research suggests that the majority of employers actually treat new mothers well. For example, 84 percent of employers believe that supporting pregnant workers and those on maternity leave is in the interests of their organisations and 66 percent of mothers felt their employer supported them willingly during pregnancy and when they returned to work. Clearly this should be a higher percentage, but it’s more than a step in the right direction.

Second, and while this may be a bit off-message it has to be said, there are mothers whose expectations of what can and should be done by way of accommodation for them on their return are not reasonable in the context of their particular employments. While such a mother may feel “forced out” by the employer’s refusal of a particular flexible working request, for example, that refusal may nonetheless be for very good reason. We must not forget either that what may be perceived as “harassment or negative comments” might in fact be attempts to discuss the difficulties which certain flexible working arrangements might cause, or just be part of the fair wear and tear of workplace life but seen through the sometimes distorting prism of recent maternity absence.

In other news, this summer has also seen a number of big tech companies introducing innovative family-friendly policies. For example, Netflix has announced that its employees will now get “unlimited” parental leave, on full pay, for the first year of their child’s life. Parents working at the media company in any country – including the UK – will be paid in full for the first year of their child’s birth or adoption, regardless of when or if they return to work during that time. They can also choose whether to go back on a part or full-time basis, and can even return to work and decide to go on leave again if necessary. The likes of Google, Apple and Facebook, have become known for taking different approaches to the work environment, with the relaxed culture, fun offices and perks such as free food and gyms of Google seeing it voted the best place to work in the UK last year.

So what can employers do to reassure staff that they will be treated fairly? Do a Netflix? Sadly most businesses simply don’t possess pockets deep enough. In addition, these are all companies which will attract and retain just by virtue of their names and “glamour quotient”. Their expectation that this investment would be repaid by the continuing commitment of their staff is therefore probably a reasonable one. It is hard to believe, however, that most employees in less exciting environments would resist the temptation to use part of their year off to look for a job elsewhere. A more effective and practical (not to mention cheaper) approach is to identify what your company does to support new and expectant mothers:

How easy do you make it for mothers-to-be to attend antenatal appointments?
Do you have maternity-related policies and procedures which are accessible to all staff?
Are your managers equipped (trained) to support new mothers and to recognise potential discrimination issues?
What is the approach and attitude of the business towards requests for flexible working? Open-minded or grudging?
Do new mothers feel pressurised to return to work early?
Are they given the same opportunities as colleagues if they want to work flexibly

And last but not least…

how open is the culture within the business? Is there an environment where vulnerable employees feel that (i) they express their concerns and (b) those concerns will be dealt with seriously? The survey shows that many victims of pregnancy and maternity discrimination stay silent for fear of being regarded as a troublemaker, and while that may mean that there is no litigation or grievance, it is not helpful for morale or retention purposes.

Helpful guidance on TUPE’s treatment of long-term sick employees

By David Whincup on September 9, 2015 Posted in Disability Discrimination, Employment Appeal Tribunal, Recent Cases, TUPE

In almost every TUPE transfer, whether a business sale or a service provision change (SPC), you come eventually to the chap receiving permanent health insurance benefits. The transferor has no need for him any longer and the transferee has no wish to bump up its own PHI premiums for someone who is seemingly never going to turn up to work for it anyway. So who gets him? Does he TUPE across or stay behind?

Some very useful guidance on this question in the service provision change context can now be found in the Employment Appeal Tribunal’s decision in BT Managed Services Limited –v- Edwards. Mr Edwards was assigned to a particular contract (DNO) operated by BT for Orange. In 2006 he suffered heart problems, arising from which he was soon deemed permanently unfit for work and put on BT’s PHI scheme. In June 2013 the DNO contract was the subject of a service provision change to Ericsson and all Mr Edwards’ DNO colleagues went with it. However, Ericsson refused to take Mr Edwards on the basis that by the time of the transfer he was no longer assigned to the organised grouping of BT labour which performed the DNO contract for Orange.

This looked harsh – Mr Edward had never been assigned to any other bit of BT’s business, neither his contract nor his title had been changed, such contact as he had with BT while off sick had all been via the DNO managers, his costs remained on the DNO P&L and his continuing presence on the DNO headcount prevented that team from hiring a replacement. It was acknowledged also that in the hypothetical event that Mr Edwards did become fit for work again, his return would at least initially be to the DNO team. Overall, how could he not be assigned to the DNO contract?

The Judge considered the existing case law on assignment without deriving much guidance from it beyond that a temporary period of absence, even relatively long-term, would not be sufficient to break a person’s assignment to a particular organised group of labour. But this was different, “quite unlike any other that I have seen related to a service provision change“, he said. Here Mr Edwards’ incapability was accepted as permanent, and though BT could no doubt have “cobbled together” (now a judicially-approved legal term, apparently) some role for him, it did not have to do so and there was no sign that it would.

Therefore by June 2013, Mr Edwards’ continuing connection with the DNO team was for purely historical reasons and of an administrative nature only. He had last done any work on the contract in 2008. Most importantly, in the EAT’s view, how could Mr Edwards be assigned to an organised group of labour with the principal purpose of carrying out activities for a client (the TUPE definition for SPC purposes) once it was accepted that he neither was contributing nor would ever again contribute to the performance of those activities? In those circumstances it was immaterial that there was no positive argument as to where, if not DNO, Mr Edwards was assigned. It was not DNO, and that was enough to resolve the matter.

In a business sale, the question of assignment does not usually arise – you are either employed in the undertaking or not. However, in SPC cases this decision is potentially very important. It may very well determine liability for employees who are on PHI or who are otherwise not expected to return. The clear inference from this case is that such people will stay behind with the transferor.

That creates the scope for some interesting arguments about the nature of the employee’s absence and in particular, its expected degree of permanence. It is in no sense impossible, for example, that someone in receipt of PHI benefits may later recover enough to resume some form of continuing employment. In those circumstances, could the inability to contribute to the activities at the heart of the service provision change genuinely be described as permanent? If not, this case suggests that the transferee would inherit the person even though he was on PHI, and even though the date for a return might be years away. So as transferor, your best bet must be to maintain a faint but persistent thread in dealings with your PHI employees that you expect them back in due course, assuming that the medical prognosis is not so grim as to make that a clear nonsense.

Breaking News: Executive Order Establishing Paid Sick Leave For Federal Contractors

By Shennan Harris on September 8, 2015 Posted in Executive Order, Healthcare, Sickness, Terms of Employment

Yesterday (September 7, 2015), while most workers were celebrating Labor Day, President Obama signed an Executive Order mandating that private employers doing business with the federal government provide paid sick leave to those employees working under federal contracts. Under the Order, beginning January 1, 2017, all federal contractors and subcontractors must agree to grant each employee working under the contract (or subcontract) at least one hour of paid sick leave for every 30 hours worked. Employees may accrue up to 56 hours (seven days) of paid sick leave per year. Accrued, unused sick leave will carry over from year to year, subject to the 56 hour annual accrual cap. There is no requirement to pay accrued, unused sick leave upon termination of employment.

Sick leave may be used by employees for absences resulting from (i) the employee’s or the employee’s family member’s physical or mental illness, injury, or medical condition or need for diagnosis, care, or preventive care from a health care provider or (ii) for domestic violence, sexual assault, or stalking-related reasons, including to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding. Family member includes a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Employees must notify the employer of the need for leave at least seven days in advance if the need for leave is foreseeable and in other cases, as soon as is practicable. The Order specifies the conditions under which an employer may require documentation and/or certification of the need for leave.

The Order requires the Secretary of Labor to promulgate regulations by September 30, 2016 and directs federal agencies to ensure that contracts entered into after January 1, 2017 comply with the Order’s requirements.