Ronald McDonald in the dock
The findings from a BBC investigation concerning allegations of sexual assault, harassment, homophobia, racism and bullying suffered by current and former employees of McDonalds make painful reading. The last five months alone have seen 100 allegations, with staff as young as 17 being subjected to unwanted conduct. Apart from being abhorrent and unacceptable, it serves as a timely reminder to all employers to keep all relevant policies up to date; have proper procedures in place to investigate complaints and conduct disciplinaries; and train employees on the difference between harmless banter and discriminatory conduct.
All our YEAR clients will automatically have these policies reviewed and updated (and our YEAR Plus clients will receive the relevant training). For those clients who have not yet signed up for YEAR, this is your opportunity to discover how YEAR can not only save you money but ensure that your policies are properly integrated, legally compliant, and provide a bulwark against potential claims. For more information, please get in touch with Tina Chander.
Mental health: new ACAS guidance
ACAS has published guidance to help employers understand what constitutes reasonable adjustments for mental health using examples and case studies. It explains how reviewing working relationships and communication styles is as important as making changes to the physical environment to help combat stress and anxiety. It also gives examples of how absence policies can be adjusted to accommodate medical appointments and recovery times. ACAS has also confirmed that employers should try to make reasonable adjustments, regardless of whether the condition amounts to a disability or not, explaining that changes in working arrangements or roles can often help someone to stay in work where they may otherwise have been unable to do so. For more detail, visit the ACAS website.
Suitable alternatives to redundancy
In September 2021 we commented on a case where a care worker had succeeded in her claim for unfair dismissal because her employer had failed to consider alternatives to making her redundant (her particular claim focused on the failure to use furlough instead). Her employer, Lovingangels Care, appealed the decision. The EAT has recently upheld the original tribunal’s decision, reinforcing the message for employers that suitable alternatives to redundancy must be reasonably considered and if redundancy is the only option, they must be able to show that they have followed the correct process for arriving at that decision.
Good Work Plan: Parental Leave and Pay
The government has just published its response to the consultation on reforming parental leave and pay. In summary, the government is proposing to give employed fathers and partners more flexibility around taking paternity leave, including the ability to take paternity leave at any time in the first year after birth or placement for adoption, and to take this leave in two separate blocks of one week, if they wish. There is also a proposal to change the notice requirements for taking paternity leave, making it easier for parents to plan the leave they need. For more detail, you can read the response document here. Although there is no legislative timetable proposed, you may wish to review your parental leave policy with a view to making your current arrangements more flexible. Our team would be happy to help you.
Hottest June on record
Recent Met Office confirmation that June was the hottest on record, beating both 1940 and 1976, means that employers should consider what measures they may need to put in place to counter the sort of temperatures that look set to become the summer norm. Despite a HSE Approved Code of Practice providing limits on minimum workplace temperatures, as yet there is no maximum working temperature for workplaces in the UK. That said, the HSE does class heat as a hazard, particularly for businesses more exposed to heat and temperature fluctuations, such as manufacturing or catering. Employers are legally obliged to look after the health and safety of their workers which does include the temperature in which they work. You can find tips on the HSE’s website to make the workplace more comfortable and we can help you devise an audit protocol for assessing and anticipating workplace temperatures.
BSI launches menopause standard
The BSI has published its workplace standard (BS 30416) for employers to help them support employees and workers who are menstruating and / or going through the menopause. It offers guidance on workplace adjustments and good practice, including reviewing policies to ensure they reflect the reality of how menopause and menstruation affects the workforce.
Case Update: Taxi driver not simultaneously an employee and worker for two different employers
United Taxis Ltd v Comolly and another and another case
This case, heard by the Employment Appeal Tribunal, confirmed that the Employment Tribunal had erred in finding that Mr Comolly, a taxi driver, was simultaneously an employee and a worker for two different employers in respect of the same work. Mr Comolly had registered with United Taxis, then drove for one of its shareholders followed by another shortly after. Mr Comolly brought various claims in the Employment Tribunal, seeking to demonstrate that he was either an employee or a worker of United Taxis or its shareholder.
The Employment Tribunal found that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman, the shareholder. In contrast, the Employment Appeal Tribunal has now found that, although Mr Comolly had been registered with United Taxis, and was required to comply with its rules and byelaws (which included rules relating to displaying United Taxis signs, payment conditions and dress codes) as a condition of being permitted to drive its passengers, there was no necessity to imply a contract with United Taxis under which he carried out work. Instead, Mr Comolly’s contract with Mr Tidman was deemed to be a contract of employment, particularly in respect of the relationship of control between the parties who split the fares between themselves on a 50/50 basis. Mr Comolly was, therefore, considered a worker of Mr Tidman, having been free to do as much or as little work as he decided, within the hours that Mr Tidman made the taxi available to Mr Comolly.
Both the Employment Appeal Tribunal and the Court of Appeal have previously confirmed their concerns regarding holding that a person was simultaneously an employee of two separate employers in respect of the same work and so, this decision reconfirms this position, following the original decision of the Employment Tribunal to the contrary. The Employment Appeal Tribunal confirmed that it had not been provided with any authority evidencing that dual employment was legally possible. The decision did, however, distinguish between having two separate jobs simultaneously with different employers, joint employment by several employers acting jointly or secondments whereby the employee had two employers simultaneously for the same period.
