Facts of the case

Gabriela Rodriguez worked as a cleaner at the offices of Devonshires Solicitors for two years, via contractor Total Clean. She claims she was sacked last year after Devonshires complained that leftover sandwiches were not being returned. She admits eating a £1.50 leftover tuna sandwich, which she thought would be thrown away. Ms Rodriguez is part of United Voices of the World union (UVW), which claims that cleaners (most of whom are migrant workers) are “routinely dismissed on trivial and […] discriminatory grounds. Many describe feeling like the dirt they clean.”

UVW claims Devonshires would not have complained about Ms Rodriguez if she was not a Latin American with limited English. She has brought claims for unfair dismissal and direct race discrimination against Total Clean, and direct and/or indirect race discrimination against Devonshires Solicitors. Devonshires deny that they made any complaint about Ms Rodriguez and Total Clean maintains that it followed a proper process before dismissing her.

Takeaways

It is difficult to comment on the rights or wrongs of the case without having more detail about what exactly happened. However, it would seem the rules that applied to Ms Rodriguez may not have been clear enough. Many employees would not consider eating a sandwich they believe will otherwise be thrown away as dishonest.  If it counts as dishonesty in your organisation, you should make that clear.

It remains to be seen whether Ms Rodriguez will succeed with her claims or if the matter will even reach a full hearing in the tribunal – but it is certainly one to keep an eye on!

In this short article, Jack Harrington and Radhika Das from our employment and pensions team consider the use of mediation as a conflict resolution tool. They look at why employers should be utilising mediation, the benefits of doing so, and how to implement mediation in your workplace.

A recent Acas study found that workplace conflict costs employers around £30bn per year. It reported that nearly half a million employees resign each year as a result of conflict, costing employers around £2.6bn annually. A further 874,000 are estimated to have taken sickness absence each year as a result of conflict, at a cost of around £2.2bn annually.

The study found that while 35% of respondents had experienced an incident of conflict or ongoing difficult relationships at work, just 5% had taken part in workplace mediation. Of those who did go through mediation, 74% said their conflict was fully or largely resolved.

Mediation is a flexible, voluntary and confidential form of dispute resolution increasingly being used for resolving disputes in the workplace as an alternative to more formal procedures. A CIPD survey suggested that ‘mediation is an effective approach to help resolve workplace disputes [which] should be required before using the formal grievance process.’

Larger organisations have set up their own internal mediation schemes in order to train employees to act as mediators. Often, employers prefer to engage an external mediator. External mediators offer a number of benefits, including:

• Saving resources: setting up an internal scheme can be costly and employees often don’t have the time to commit to facilitating a mediation process.
• Conflicts of interest: it can be difficult for an employee to remain impartial and unbiased.
• Seniority: if those involved in the mediation are senior individuals within the business, it can be difficult for an employee to feel comfortable facilitating the mediation.
• Confidentiality: disputes often concern sensitive or confidential information. An external mediator can help to control the spread of that information within the organisation.

A simple first step on the journey to introducing workplace mediation is to include mediation in internal policies and procedures as part of the organisation’s approach to people management. For example, as the CIPD survey referenced above suggests, encourage mediation to be considered before the formal grievance process is used.

It is increasingly being recognised that mediation can be a ‘win-win’ approach – employees are able to reach a resolution without going through a lengthy and adversarial process, and employers are able to improve staff retention and avoid expensive tribunal claims. It is unsurprising therefore that the reported number of mediations carried out in England and Wales jumped from 2,000 in 2003 to 12,000 by 2018 and 16,500 by 2020.

Our employment and pensions team have qualified mediators who would be happy to assist you with implementing mediation as an approach to resolve workplace disputes. For more information, please contact jack.harrington@pannonecorporate.com.

We will be talking more about the benefits of workplace mediation and practical tips on approaching it at our next HR Club on 14 September 2023 – contact jolanta.jones@pannonecorporate.com to register your place.

In this short article Michael McNally and Lorna Shuttleworth from our employment and pensions team consider the use of external investigators when carrying out workplace investigations. They look at why an organisation may instruct an external investigator, the benefits of doing so, and the issues to consider when instructing external investigators.

On 21^st April 2023 the Government published Adam Tolley KC’s investigation report into complaints about the conduct of the Deputy Prime Minister, Dominic Raab MP. Mr Raab resigned the following day. A few days later, on 24^th April, the CBI wrote an open letter on the recommendations of Fox Williams, an external law firm, following its appointment to carry out an investigation after reports in The Guardian in early April of a ‘toxic culture’ at the CBI and other serious allegations. Both stories involve external lawyers being appointed to conduct investigations into serious workplace issues. Whilst these are two high profile examples, organisations will often instruct barristers, law firms, and other independent professionals to investigate serious issues that arise in the workplace.

In this article we look at why, based on our experience of carrying out external investigations on behalf of organisation, an organisation may instruct an external investigator, the benefits of doing so, and the issues to consider when instructing external investigators.

1. Seriousness

External investigators are usually appointed when a matter concerns the most serious types of allegations and/or relates to senior individuals. This was the case in both the Raab and CBI investigations. For example, in the case of the CBI, the external investigation was focused on “whether the CBI’s leadership was aware of any of the events before the recent media reporting, and if so what steps they took or failed to take in response.” In relation to that particular issue, it would be very difficult for someone within the CBI to have looked into that question because it specifically concerned the actions of the CBI’s leadership.

2. Perception

That last point leads on to the next reason why an external investigator may be appointed, namely ‘perception’.

In the case of Mr Raab, the CBI, and other examples such as the allegations of discrimination at Yorkshire County Cricket Club, it could undermine any findings if the organisation was seen to “mark its own homework”. This principle is also true of lower profile, albeit serious, matters.

To be able to draw a line and move on, it’s not enough that an organisation takes the matter seriously, it must be seen to have taken it seriously. Interested parties need to have confidence in the findings. History is littered with examples of investigations and inquiries that are perceived to have been a “whitewash”. Whilst instructing an external party to investigate concerns will not always ensure the right perception, it can certainly help to do so.

3. Complexity

Workplace investigations need to be handled properly and thoroughly. If they are not, there can be serious legal, financial and reputational consequences for the business.

In respect of grievances for example, Acas states that it is highly recommended that anyone appointed as an investigator should be trained in the relevant area wherever possible. If there is no one within the business who is suitably qualified, experienced, and confident to deal with the investigation, it is advisable to instruct a third party with the relevant experience.

The process of identifying relevant issues, questioning witnesses, analysing the evidence, and making findings can be difficult and external investigators will often be chosen for their skills in these areas. For the most serious issues, which as mentioned earlier are usually the subject of external investigations, it is vital that these things are done as well as possible.

4. Neutrality

Best practice is that an investigator is impartial and acts fairly and objectively. For day-to-day workplace issues it will usually suffice that the investigator is not directly involved in the matters being investigated. However, for more serious matters the issue of neutrality needs to be carefully considered.

If the investigator is found, or even just perceived, to have been biased,  it leaves the findings of the investigation open to challenge. Appointing an external party, seen to be a neutral actor in the process can also help in ensuring witnesses are willing to co-operate and are candid when giving evidence.

However, one thing to consider on this point is to what extent the investigator is said to be independent.

Depending on the nature of the investigation external investigators may conduct the investigation on behalf of the organisation (in the same way an internal member of staff might). Whilst this may not be independent in the strictest sense of the word, the fact the issue is being looked at by someone from outside the organisation with specialist skills can still be beneficial. Alternatively, whilst the organisation may ultimately pay the external party for their services, some external investigations are conducted with a view to them being truly independent, for example we have seen published reports that will make it clear that the investigator’s fee will be paid before a report is delivered. If instructing an external investigator it is important to consider the exact nature of their role and ensure that is clearly communicated to anyone with an interest in the process.

5. Privilege

In some circumstances, including where litigation is anticipated, an investigation report may be legally privileged. The scope of this privilege may be wider if lawyers, rather than other third parties, carry out the investigation. Legal privilege is particularly helpful where the organisation does not know what the investigation will reveal, enabling a confidential investigation into  the concerns in order to determine how best to deal with them. Without the benefit of legal privilege, some organisations might well be deterred from carrying out an investigation for fear of what they may find.

We know from our experience of carrying out, supporting, and advising on workplace investigations that these issues play a part in deciding whether to appoint an external investigator. And, whilst we are not privy to the thought process of those who instructed external investigators in the examples cited in this article, no doubt some of these considerations played a part in their decision.

If your business has an issue which requires further investigation, please contact michael.mcnally@pannonecorporate.com.

Pannone Corporate has strengthened its HR and employment law offering for businesses with the launch of a menopause toolkit.

The menopause toolkit will provide employers with a package of materials and legal support to ensure businesses can provide meaningful support to employees managing symptoms of the menopause. 

The launch follows a lengthy inquiry by the House of Commons’ Women and Equalities Committee (WEC) into menopause and the workplace at which Pannone Corporate gave evidence, providing legal insight from an employer’s perspective to illuminate best practice and shared challenges.

According to the WEC, almost a million women in the UK have left jobs as a result of menopausal symptoms. A recent survey commissioned by the committee also found that nearly a third of women miss work due to menopause symptoms and that the vast majority don’t ask for support, mainly because of concerns about how others may react.

The Pannone Corporate menopause toolkit includes an initial assessment of current relevant policies and procedures, a menopause policy which is tailored to each individual business and their needs, guidance for managers, delivery of staff training alongside the policy launch, and a six-month review meeting.

Chloe Pugh, an employment associate at Pannone Corporate, said: “The menopause is a topic that is being discussed in public arenas more than ever before and the subject is, quite rightly, becoming less of a taboo. As awareness of this issue increases, it is important that employers create a culture where staff feel they can request, and will get, support with any menopause related issues they are facing. A failure to deal with such requests appropriately or at all could result in businesses losing valuable employees and potentially facing tribunal claims for sex, age or disability discrimination.”

If you are interested in getting the menopause toolkit for your business, please get in touch with Fiona Hamor on fiona.hamor@pannonecorporate-com.stackstaging.com or call (0)7717 342049

“Before anything else, preparation is the key to success,” said Alexander Graham Bell. Sometimes as HR leaders, it can feel that you have to prepare for every eventuality as you can never predict what the next call or issue may be. But how can you prepare for you or any of your colleagues giving evidence at an employment tribunal?

Our mock employment tribunal training session gives managers and HR teams the opportunity to experience what could happen at this type of hearing and to take part as witnesses! Based on a fictional scripted scenario, we explain the set up and procedure of an employment tribunal hearing and provide you and your colleagues with the experience of giving witness evidence and being cross examined by a legal professional. You will have the opportunity to consider and discuss whether the claimant will win or lose, before hearing the final judgment.

This preparation can make a world of difference to future outcomes because participants will better understand the importance of following fair processes, documenting decisions and the potential consequences of failing to do so. It also gives you the opportunity to see how an employment tribunal operates and what sort of factors make the difference between winning and losing, as well as being quite good fun!

Here’s what some of our participants said:

John Wrigglesworth, Operations Manager, Rail Gourmet

“I found the mock tribunal very useful. Certainly, in how the judge rules, and the rationale behind it. Understanding the legal rationale more than I did and then the emphasis on witnesses coming across as credible were my main takeaways.

“Prior to that I thought the written evidence/bundle held far more sway but your credibility on the stand counts for a lot.”

 James Turner, Head of People Services, SSP

“A fantastic event which prompted really good participation and discussion throughout from the audience. Essential training for any leader who hosts any type of ER meeting with colleagues. Relevant case studies from outside of the business really helped bring alive the need to manage cases thoroughly, applying fair judgement, not just policy and process.”

Kerry Rodgers, Operations Manager, SSP

“It was a fantastic day and certainly an eye opener. It certainly will make me think more when doing grievances and appeals.”

To find out more about how we can support your business through training and development opportunities like these, take a look at the Pannone Academy website.

The Legal 500 is positioned as the ‘client’s guide to the best law firms’ because it is underpinned by client feedback and insight about how a firm and its lawyers work. It’s an important benchmark, which celebrates our team, allows us to build on success and strive for continuous improvement.

The Legal 500 rankings for 2022 – highlighting the practice area teams who are providing the highest quality legal advice – feature Pannone Corporate in 15 areas of law, moving up in two corporate & commercial, and commercial property.

The rankings include Tier 1 listings for our contentious trusts and probate, media and entertainment, and debt recovery teams. As well as the teams’ success, three people were named in the Hall of Fame, the firm had six namechecks for ‘leading individuals’, two ‘next generation partners’ and four mentions for ‘rising stars.’

Beyond the numbers and fantastic recognition in the rankings, we’re proud to see all the feedback from clients. Here’s what they said:

Contentious trusts & probate

“What sets them apart is their ability to combine their knowledge of the law, the softer skills of client care and an ability to be direct. The clients I have referred to them are by the nature of the specialism in a highly emotional state and every one of them has been gushing in their praise of the work done by this team.”

Debt recovery 

“An engaging, tenacious team who are practical and efficient in what they do. They have worked with us and our functions to provide a seamless recovery service to suit our business needs.”

Media & entertainment

“Liaison with clients takes on a personal form and the relevant legal staff do not need reminding about issues. They keep in touch.”

Employment 

“Responsive, accessible and commercial practitioners who work with us, as the client, to arrive at the right outcomes for our business.”

Health & safety

“A new team but one with excellent experience and technical expertise with a dynamic can-do approach and a personable demeanour.”

Intellectual property

“…amazing from our first meeting right to the conclusion of my case, our first meeting gave me hope in a situation which I had long since deemed a lost cause… extremely empathetic to my situation and secured a settlement against a formidable adversary.”

IT & telecoms

“Attentive, personal and always available for advice and guidance.”  

Professional negligence

“Highly specialised firm with a strong track record in claimant professional negligence work.”’

Commercial litigation

“Pannone Corporate has lawyers at the top of their respective disciplines and a client base to match. Customer service is a key ethos at the firm with a high degree of partner involvement ensuring the client gets the service it needs. Electronic document management and searching ensures that key documents are identified early in the case.”

Corporate & commercial

“…adaptive and pragmatic in their guidance and advice. We completed three transactions with them and found them to be sensibly priced and adaptive in their approach to the size and scale of due diligence required.”

Property litigation

“Pannone Corporate strikes an excellent balance: they have the big-firm capacity to handle large and complex cases, but the small-firm responsiveness and personal touch. They have the flexibility and skills to manage cases that cross between different fields, for example real estate litigation that raises company law, insolvency or property damage issues.”

Commercial property

“The approach of Pannone and their staff is very much aligned to our values, what is important to us and the way we like to operate, Pannone recognise this and it’s reflected in the service they provide. It’s important when dealing with legal matters that a firm has the ability to tailor its service to work in partnership with its clients, take time to understand our objectives, the way we operate and therefore offer a more bespoke service to deliver the right outcomes. I feel that this is a specific strength of Pannone.”

Insolvency & corporate recovery 

“The team are always ready to help and have found innovative solutions to technical problems.”

Construction 

“All of the partners feel like extended members of the in-house team. They are flexible and accommodating.”

As employers welcome back staff in the coming weeks, Fiona Hamor catches up with People Management magazine to talk about what employers need to be aware of from a HR and employment law perspective.

While remote working has thrown up significant challenges for employers, a return to the office will equally create newfound problems generated by COVID-19. Recent employment tribunal rulings have highlighted some of the issues that have arisen from the pandemic, which have led to unfair dismissal claims being made.

Fiona says: “COVID-19 has undoubtedly left an indelible mark on the workplace and businesses have had to adjust to new ways of operating. The return of workers over the coming months will continue to pose unprecedented challenges to employers. The need to understand, assess and act on potential risk is clear, if businesses are to remain operational and to protect against any potential future claims.”

Read the full article on the People Management website. https://www.peoplemanagement.co.uk/experts/legal/what-to%20consider-employees-return-to-workplace

In our latest My Life in Law, we speak to employment director, Stephen Mutch, about his career in law and his love of bass playing in indie/alternative group, BC Camplight.

•  When did you join Pannone Corporate?

I’m what’s called a ‘one club man’ in football.  I joined Pannone Corporate’s predecessor firm as a fresh-faced trainee lawyer back in 2003. This isn’t actually that rare at Pannone Corporate – there are a good handful of people here who joined when I did.

• What was your role/experience prior to joining?

I joined Pannone straight from university, having completed a law degree at the University in Sheffield and a post-graduate in Chester.

• Why did you join Pannone?

They had a great reputation and a very varied portfolio of legal work. Even back then, they prided themselves on having a more human element than most firms – something I still think is true after nearly 20 years.

• Having gone to university, why did you choose this route?

I’m rather ashamed to say that back then it was simply what most people did. Progress has been made, in terms of alternative routes into a career in law, but there’s still a very heavy reliance on a ‘good’ degree from a ‘redbrick’ university to open up doors. Lots more still needs to be done.

• What is the most satisfying aspect of your job?

I like the intellectual challenge and getting to speak to and help people run their businesses. Employment lawyers are almost always a ‘distress purchase’, so it’s nice to help people with the problems or challenges their business are facing.

• What does a typical day look like?

I spend most of the day on the phone or emailing clients providing advice, mixed in with a healthy dose of preparing clients’ defences for employment tribunal proceedings.

• What are your career ambitions?

I’ve always enjoyed helping more junior lawyers navigate what can be a very difficult first few years, so more involvement in what I enjoy. That’s on top of the usual partnership, world domination type ambitions of course…

• What would you be doing if you didn’t have a career in law?

I would be a penniless and struggling musician (please see below)

• What can lawyers / the legal profession do to better support clients? Does anything need to change?

I think some lawyers can still be a bit stuffy. Rarer these days, but clients don’t want that kind of lawyer anymore. Being user friendly and pleasant to deal with is top of most client’s priorities.

• What do you enjoy doing outside of work?

I play bass in indie/alternative band, BC Camplight, which releases records under the Bella Union label in London, so that takes up a lot of my time. We’ve been on the radio a fair bit and get to do around 30-40 shows a year. We’ve toured in Europe and played some of my favourite venues, such as the Roundhouse in London and the Paradiso in Amsterdam (Nirvana played there!) – there were 3,000 people in the audience, and I turned off my own instrument for our last song. Not cool! Our next record is out in the Spring.

I am also a trustee for a local arts-based charity called Art with Heart. Check them out here  https://artwithheart.org.uk/

• Do you have any particular skills/talents that your work colleagues may not know about?

I would say ‘please see above’, but I bore everyone to death with my tales of the (not so) rock ’n’ roll lifestyle!

The latest figures from The Advisory, Conciliation and Arbitration Service (Acas),  show the significant financial impact workplace conflicts can have on a business.

In its latest report, Estimating the Costs of Workplace Conflicts, Acas has said that workplace conflict costs UK employers £28.5 billion every year, an average of just over £1,000 for every employee. This is based on the total cost to organisations in handling workplace conflict that includes informal, formal and legal processes, as well as the cost of sickness absences and resignations.

During a period where margins are being stretched, additional costs such as these will only increase the considerable financial pressure being placed on businesses. If you add to the fact that, according to Acas, nearly half a million employees resign each year as a result of conflict, then the argument for taking a proactive approach to workplace conflicts has never been clearer.

Handling disagreements and complaints early before employment relationships are damaged not only helps to save businesses time and money in managing those claims, but it can also prevent unnecessary recruitment costs further down the line.

So, as a business, what can you do to try and prevent workplace conflicts from materialising?

A proactive approach

The key is prevention. Having a robust set of policies and procedures in place that are clearly communicated to employees and managers is an important step in creating an open and transparent workplace. If your business instils agreed customs, ideas and behaviours that everyone buys into then you can create a positive culture where people believe they are being listened to and one that encourages employees to handle any potential conflicts in a proactive and positive way.

Handling grievances

It’s essential to have a formal, written grievance procedure in place that is reviewed on a regular basis in line with any changes in legislation or official guidance, and managers should receive relevant training, so they know the steps to be followed. Ensure that when a grievance is raised, you refer to your procedures immediately – allowing you to manage workplace conflicts effectively and in a formal way. This includes investigating grievances fairly and consistently; creating open lines of communication for everyone involved; taking action and making decisions as soon as possible; and allowing the employee the right of appeal.

Focusing on diversity and equality

Creating a culture of fairness and inclusion is key when focusing on diversity and equality. This should be displayed throughout an employee’s journey with the company – from recruitment, through to day-to-day activities and any formal exit interview. Ensure key members of the team are aware and follow the correct procedures and are actively identifying and acting upon any potential breaches. Finally, arm each and every member of staff with the skills and training to ensure diversity and inclusion become a natural part of the organisational makeup of the business, and not something that you simply pay lip service to.

Bullying and anti-harassment

A policy on bullying and anti-harassment is also helpful as it can set out the company’s standpoint on such behaviour, give examples of what this can look like and make it clear it won’t be tolerated. This can reassure employees who feel they are being bullied or harassed that they can raise any concerns in a safe space, and set out the steps for you to take action against any perpetrators where appropriate. Training for staff and management on this subject can also help to the avoid behaviour arising in the first place, by illustrating that it is not acceptable in your workplace and highlighting the potential consequences.

In a world where more than half of employees are currently working from home, it’s vital to have the right systems in place that provide you with the flexibility to manage potential grievances that may arise remotely, while ensuring they’re firmly in place once people start to return to the office.

If you would like to discuss providing training for your staff around any of these issues, contact Chloe Pugh on chloe.pugh@pannonecorporate-com.stackstaging.com call 07500 797553, or visit our training website Pannone Academy at https://www.pannoneacademy.com.

The impact of the coronavirus pandemic has been complex and far-reaching. No facet of business, or society, has escaped the effects of COVID-19 and serious questions have been asked of both employers and employees. 

While the issue of fraud – and more specifically employee fraud – has been on the radar for many years, the unique challenges posed by the pandemic have brought the problem under the spotlight in recent months. 

Whether it’s payment fraud, procurement fraud, personnel management, travel or subsistence fraud, exploiting assets and information, or receipt fraud, cases of employee fraud are common. According to Action Fraud, nearly 1 in 5 small businesses have been defrauded by an employee at some point during their trading history, causing significant loss and damage. Unsurprisingly, recent figures from NatWest show that UK businesses have been hit by fraud at a cost of £190 million a year, with 40% being caused by internal employees.

Despite a general perception around the issue, fraud isn’t always the product of malicious intent. Quite often, it materialises from despair, a lack of ability, or even inexperience. With many employees working remotely, and feeling disconnected from the structure and security of the workplace, it’s little wonder the problem of employee fraud has come under the spotlight. 

Times of economic uncertainty or economic boom, as evidenced before and as a result of the 2008 financial crash, often lead to an increase in fraud. Circumstances created by the pandemic – homeworking, job insecurity and financial hardship, and availability of financial support from the Government – all create an environment in which workplace fraud can increase.

Pre-pandemic, the fear of the boss “looking over the shoulder” could be a key factor in limiting employee wrongdoing and minimising the risk of employees falling victim to fraud from third-parties. However, the pandemic has forced employers to rely to a greater extent on its internal policies and procedures, as well a trusting its employees to do the right thing.

 To minimise the risk of fraud by employees, employers should consider:

• Reviewing and (as appropriate) improving their internal policies and practices, so that employees understand what is and is not acceptable in the workplace.
• Ensure their IT security is fit for purpose now that many employees are working from home and will continue to do so long term.
• Deal with concerns promptly and proactively before they escalate. This approach can help maintain high standards within the workplace and promptly deal with issues before they get out of hand.
• Implement mandatory periods of annual leave, job rotation and other similar measures to protect against employee fraud.
• Review the financial incentives provided by the employer and consider whether they could in fact encourage employee wrongdoing.
• Ensure employees receive adequate training on the employer’s systems and their obligations under the likes of the Bribery Act 2010.
• Work on creating a culture in which employees feel they can talk to their employer about concerns, such as financial worries. If the employer does not have one it could look at implementing an employee assistance programme.

 To minimise the risk of employees’ actions resulting in fraud by others:

• Make sure employees know that they can speak to their manager if they have concerns or are worried about anything.
• Ensure employees receive adequate training and support.
• Educate employees on the risk of fraud and how fraudsters may target them individually or the employer’s business. 

Whilst a determined and sophisticated fraudster will always find a way, most workplace fraud (committed by or against employees) is often opportunistic and possibly due to lapses in oversight, poor management, or simple human or technology error. Taking a risk-based approach to identifying the greatest areas of risk within a business can help an employer effectively review, monitor, and minimise risk and to put in place the appropriate systems and defences to protect against internal fraud.

 If you would like to discuss the topic of employee fraud, contact employment director, Michael McNally, on 07736617394 or email Michael.McNally@pannonecorporate-com.stackstaging.com

Background

The employee, who is of Pakistani descent and her religion is Islam, was working for a food retail company in the sales team. She pursued a claim for direct discrimination and harassment on the grounds of her race and religion for various matters, including: 

• That she had higher targets than her colleagues and her concerns regarding this were ignored;
• That she was not awarded a salary increase;
• That her manager treated her differently to her colleagues in the way he addressed any performance concerns with her; and 
• That her manager asked her to pick up an item that went against her religious belief, namely a pork product, and allegedly laughed at her when she said it was against her religious belief.

Some of the allegations relied upon were outside of the Tribunal’s time limit, however the Tribunal had to consider all of the allegations to understand whether time should be extended on the basis that the treatment complained of was a ‘continuing act’. 

The ruling

All of the employee’s allegations failed. The Tribunal found that she was not treated differently because of her religious beliefs, nor was she forced to pick up an item that went against her belief or laughed at when she informed her manager that it was against her beliefs.

 Why is it important?

The case is a useful reminder that if a poorly performing employee is the only individual within the company of a certain race or religion, this will not necessarily translate into a claim if an employer can clearly evidence the underperformance.

The allegation that the employee was asked to purchase and handle an item of food that went against her religion is of particular interest. It’s likely that many employers in the food and hospitality industry will come across employees who adhere to certain values or beliefs. This may mean that they don’t consume or handle certain food or drink items for this reason, but who would be expected to handle such items during the ordinary course of their employment. 

This case serves to demonstrate that employers should be aware that there could be a risk of discriminating against employees if they are asked to handle items that go against their religious beliefs and they should be mindful of this when allocating tasks. 

The saving grace for the employer in this case is that no pressure was put on the employee to purchase or handle the pork product. In fact, when the manager in question was informed that this request went against the employee’s religion, he immediately told her he could organise for someone else to source this product, but the employee said she would be willing to do it provided her contact with the item was minimal.

If you would like to discuss any employment related concerns within your workforce, contact Katie Kennedy on Katie.Kennedy@pannonecorporate-com.stackstaging.com or call 07711 767099.

The mental and physical wellbeing of employees will be the biggest HR challenge for businesses in the next 12 months, as concerns grow about the welfare of remote workforces. 

More than half of HR professionals (55%) admit that the issue will be the main focus in the year ahead, with an overwhelming 83% saying they have concerns about the overall mental wellbeing of employees as a result of the pandemic.

According to our survey of HR professionals, carried out during a recent HR Forum, managing the ongoing COVID response, including the Coronavirus Job Retention Scheme (CJRS), redundancies and health and safety, was also a significant HR obstacle. Furthermore, managing change for future working ranked highly amongst HR professionals, as they continue to adjust to a new hybrid of home and office working, the impact on wellbeing, recruitment, flexible working and performance management.

The survey found that a significant number of respondents planned to make permanent operational changes in 2021, as a result of their lockdown experience, with nearly half (44%) intending to introduce flexible working, and a further 44% looking at a working from home model.

Jack Harrington, partner and employment lawyer at Pannone Corporate, commented: “The workplace has changed beyond recognition in the last 12 months, with what were sometimes seen previously as peripheral HR issues being brought to the fore as a result of the pandemic. 

“Unsurprisingly, the majority of HR professionals (94%) anticipate an increase in flexible working requests as restrictions are gradually lifted, with nearly half (44%) planning permanent changes to contracts of employment or HR policies, as businesses continue to adjust to the new ways of working that COVID-19 has forced many employers to adopt.”

Currently, all employees have the legal right to request flexible working – not just parents and carers. Employees must have worked for the same employer for at least 26 weeks to be eligible for making a ‘statutory application’. However, campaigners, including employment and discrimination barristers Ijeoma Omambala QC and Rebecca Tuck QC, presented their ‘Flexible Working Beyond a Crisis’ report, funded by Sir Robert McAlpine, to the Law Commission last month. This follows a six-year campaign to make flexible working a right for everyone from day one. 

A staple in every employment contract, the non-compete clause serves to act as a deterrent for any employee looking to jump ship and set up a similar business in direct competition with their former employer.

Despite being somewhat difficult to enforce, it’s their mere presence in a contract of employment that makes them as effective as they are, particularly when coupled with other clauses, such as confidentiality and protection of intellectual property.

However, there are two schools of thought emerging on the non-compete clause – one that thinks they’re an essential way of protecting a business, by deterring employees from taking ideas, clients and staff to set up shop round the corner within a certain period of time; and then another, which believes that the contractual clause is actually stifling entrepreneurship, particularly in the technology sector, inhibiting economic growth and innovation.

According to reports, the government falls into the latter and will launch a public consultation within days to determine what changes need to be made to non-compete clauses, and to make it harder for employers to block staff from leaving to set up rival companies, in an effort to nurture more start-up businesses.

Apparently, the government is concerned that current use of the clauses is thwarting workers from leaving jobs and setting up their own businesses. As such, ministers are looking at whether reform in this area could enable free movement of future talent – as seen in California and, more specifically, Silicon Valley.

For many business owners, the thought of diluting such a clause, regardless of how difficult it is to enforce, is a worrying one – particularly smaller businesses that don’t have the means to challenge employees who go on to set up rival companies. Importantly, ministers are not expected to ban non-compete clauses altogether, but instead focus on whether they are well targeted and reasonable.

Regardless of the outcome, the fact still remains that the detail within an employment contract is crucial – not only in protecting a business, but also employee rights. We see time and again the value in getting contract wording right. Nothing can be put down to interpretation; nothing can be stretched to fit a certain situation; you have to have an employment contract that is properly drafted to enable an employer to show that the restriction goes no further than is necessary to protect its legitimate business interests. This point was illustrated in the recent case of Gemini Europe Ltd v Sawyer where the High Court agreed to uphold an interim injunction, enforcing a nine-month non-compete clause in a former employee’s contract of employment. This centred on the managing director of Gemini, a company that operates in the emerging and highly lucrative cryptocurrencies sector, leaving the business and joining a competitor three days after his employment came to an end.

Despite a complex contractual arrangement, the court found in favour of the business and was satisfied that the contract was valid, enforceable and that Gemini was entitled to protect confidential information which would have given the competitor an unfair advantage.

Whether a government-inspired public consultation will lead to a reform of non-competing clauses is yet to be seen, but what it does emphasise is the importance of regularly reviewing employee contracts to ensure that not only their restrictive covenant clauses are appropriate and reasonable, but also the confidentiality provisions are up-to-date and relevant.

What’s more, any changes to non-compete clauses can only serve to emphasise and heighten the significance of other clauses contained within employment contracts, such as confidentiality and protection of intellectual property.

If you would like further information on ensuring your employment contracts are watertight, contact our employment team.

Employees are what makes a business tick but what happens when the employment relationship goes wrong?  Sometimes workplace relationships break down, issues with performance or conduct arise, disputes develop, and if these can’t be resolved internally or result in a dismissal, a tribunal claim may follow. 

Dealing with an employment tribunal claim can be costly and involve substantial management time and work, as well as being worrying for colleagues who are involved as witnesses, but there are steps you can take to minimise the chances of receiving a claim. 

Contracts and Policies 

When it comes to avoiding employment claims and protecting your business, there are no easy answers, however putting in place effective employment contracts and HR policies and applying them consistently is the first and most important step.  

The second step is to keep those contracts and policies up to date. Employment is an area of law where the goalposts are constantly being moved or removed, so a regular review of your contracts and policies will ensure that you remain compliant with current legal standards and requirements and minimise the risk of employment tribunal claims.

Training

Contracts and policies don’t work in isolation.  Ensuring that your managers are well prepared on how to, and more importantly how not to, deal with formal grievances, investigations and disciplinary hearings is a crucial step in preventing a straightforward matter from escalating into a tribunal complaint. There are a number of clear procedural stages that need to be carried out for a dismissal to meet the legal test of fairness – providing training sessions for managers will equip them with the relevant knowledge to follow the appropriate procedure. 

Training for employees on equality and diversity and the standards of behaviour you expect in the workplace is also important – conduct that some employees consider to be harmless may in fact make others feel very uncomfortable at work and may be unlawful. 

Equality and diversity training is also essential as part of a “reasonable steps” defence for your organisation in the event that a member of staff is harassed by a rogue employee.

The Human Element

An informal face to face meeting with an employee who has a concern, or about whom you have a concern, can work wonders if handled in a sensitive way. Where appropriate, a friendly, honest chat in the early stages can resolve a complaint before it develops into something more formal and if an employee feels they have been listened to and dealt with reasonably, they may be less likely to take the matter further. Similarly a word to the wise may lead to an improvement in performance or conduct without the need to take formal disciplinary action – if the problem persists you still have the option of moving to a more formal stage of the disciplinary process with the advantage that this will come as less of a surprise to the employee. 

The Letter from the Tribunal 

What happens if, despite your best efforts, you receive an employment tribunal claim?

You will often (but not always) have advance notice of an incoming claim in the form of a telephone call from an ACAS conciliator – all potential claimants must contact ACAS to discuss early conciliation before lodging a claim although there is no obligation on either party to pursue conciliation. 

In any event you should be on the look out for the arrival of a claim form – note that forms are not always sent to the right place or person so alert all managers.

Once the claim form lands, it is essential to take advice and act quickly – the time limit for responding to a claim is 28 days from the date it is sent out to you. Ignoring a claim is not an option, a failure to lodge a defence is likely to result in a default judgment being entered against you. You will need to gather all the relevant evidence and speak to the people involved as soon as possible so you are in a position to lodge the best possible defence. 

Our expert employment team here at Pannone Corporate can provide bespoke in house training and carry out contract and policy reviews, as well as supporting and advising you to defend tribunal claims. If you’d like to discuss any of these matters, or for advice on HR and employment law issues more generally, please don’t hesitate to get in touch with us on 0800 131 3355 or fill out our contact form.