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Discipline and grievance

Discipline and grievance

Kathy Daniels

And what we’re going to do today, is to look at the whole of the discipline and grievance process, and what the issues are that arise; what the legal issues are, and how to avoid it and mitigate those risks. And one of the things that is really important to note with discipline and grievance, is that there are legal requirements, and then there are also the way we do things around here [00:31]. And every organisation has its own way of doing things. And we have to tease out the difference between what legally we’re required to do, and what the organisation does in their policies and procedures. And of course, there’s a huge overlap between the two, because a lot of the things that an organisation does, they do it because legally they’re required to do it. But we will…what I will be doing today is telling you about the law. And do question me if you’re thinking, oh we do that, I wonder whether we do that because it’s a good thing to do, or whether legally we’ve got to do it. So, if you have any queries like that, please do just shout.

Let’s get on and talk about discipline and dismissal…disciplinary and grievance. And what I’m going to do, is I’m going to start us off by telling you a bit about fact. So, I’m going to tell you a little bit about the law. I’m then going to raise some questions, which I’m going to ask you to reply to in the chat box. And I’m not trying to catch anyone out with these questions. But over the years that I’ve been talking about discipline and grievance, these are the…some of the most common questions that I ever get asked, and so we can have a little bit of a chat about these questions. Then I’m going to go back to doing a bit of talking, and I’m going to explain to you some of the common issues that arise and how to avoid those problems. And then I’m going to leave time for general questions at the end as well.

So, what are some of the basic rules about discipline and grievance? Well, the number one rule is, that you must follow the Acas Code of Practice Disciplinary and Grievance procedures. Now, the Acas Code is not the law, in the sense that, say, the Employment Rights Act 1996 is law. So, the Acas Code of Practice is not law like the Employment Rights Act 1996, or the Equality Act 2010. But it must be followed — because if you don’t follow it, it doesn’t mean that the outcome will automatically be unfair, but it does mean that it almost definitely…it’s going to be that you’ve done something fundamentally wrong and therefore the dismissal will be unfair.

The other thing is that if somebody wins a claim of unfair dismissal — so an employee takes a claim — then the compensatory award can be increased by up to 25 per cent. So just to explain what I mean by that: when somebody wins an unfair dismissal claim, they get the basic award, which is the equivalent to a statutory redundancy payment, and then they get compensation for what has happened. And primarily, that is the wages that they’ve lost. Acas Code of Practice is that, over the years there have been a number of different versions, and you must make sure you’ve got the most up-to-date one, and that is March 2015. The easy way to find it is just go on the Acas website and find it. And one of the reasons that employment tribunals are pretty intolerant of it not being followed, is it’s very straightforward.

So, let’s have a look at what the key principles are from the Acas Code. First of all, to address issues promptly. So, if there is a disciplinary issue, it should be dealt with when it arises. And something employment tribunals are not keen on, and can…it could lead to an unfair dismissal, is if you have had a situation, it’s been going on and on, and you’ve not said anything to an employee about it. And then all of a sudden, you’re giving a disciplinary warning, and then maybe another, and then maybe dismissing. Because if, say it’s a performance issue and you’ve never said to an employee “that’s not acceptable” then they’ve presumed it is acceptable. Because when we go home at the end of the day, unless somebody’s told us otherwise, we presume we’ve done a good day’s work. And so, issues need to be addressed promptly.

The other thing is that there must be consistency. And this is really important: that if one employee gets a disciplinary warning for poor attendance, or for poor punctuality, or for poor performance, and another employee is doing exactly the same but gets no disciplinary sanction, then that is unfair. And I keep mentioning employment tribunals because ultimately if disciplinary warnings go through the whole process, we can end up in a situation where somebody is dismissed and they could claim unfair dismissal. The employment tribunal do not and cannot say, “Would I have dismissed? Would I have given a disciplinary warning?” They’re not allowed to do that. What they have to say is, “Was the decision to give a disciplinary warning or a dismissal within the range of reasonable responses?” And part of that, they’ll be saying, “So, what’s happened to other people that have done similarly?” And if the answer to that question is, “Well, there’s Fred and he’s still working away, and there’s Bill and he’s got a disciplinary warning,” then that’s going to be unfair.

There is also a need to carry out investigations. And this is something that I think sometimes can get a little bit overlooked with disciplinary warnings. That as HR people, we know if something serious has happened that could lead to a dismissal, that we need to carry out a thorough investigation. But what we must remember is a disciplinary warning is serious. It’s the first step on the slippery slope — if you can have steps on a slippery slope — to dismissal. And therefore, each stage has got to be as thorough and well-thought-out as if we were at the end. So there must be an investigation.

And the employee should be told what the problem is and what the solution is. So, if the problem is that their work is not of sufficient standard, then they should also be told what ‘sufficient standard’ will be. So, what is going to be good enough for there to be no further disciplinary warning? And with all formal disciplinary or grievance meetings, there is a legal right to be accompanied, and that is to be accompanied by a colleague or a trade union representative. And there is also a right to appeal against any disciplinary sanction.

Now some employers have an informal warning, which isn’t part of the disciplinary procedure. But they always have a sort of, informal chat before they would countenance getting engaged in a formal disciplinary process. If you, in your organisation, have that informal chat process, then there is no requirement to allow employees to be accompanied to that or allow employees to appeal, because there isn’t really anything to appeal against. All you’ve done is have a chat that says, “Look, this is not good enough. You have to be aware that if you don’t get your act together and get this sorted, then it could result in a disciplinary warning.” But you haven’t actually given a warning and therefore there is nothing to appeal against. But there is no right to be accompanied at informal chats. If you wanted to allow it, so be it. But if you did allow it, then you would have to allow it consistently for all employees.

Now, I keep talking about disciplinary warnings — what is the actual requirement? Now, this is an area where you do see variety in organisations. And actually, interestingly, disciplinary warnings are not set out in the law. So, where we see our advice and guidance on disciplinary warnings is actually in the Acas Code of Practice disciplinary and grievance procedures. And what that says is that there should be at least two formal disciplinary warnings before dismissal. And they refer to these a formal written warning, and a final written warning.

Now, I sit on employment tribunals as a lay member, and I’ve done this for many, many years. And over those years, I’ve seen lots of variations on two warnings. I’ve seen three warnings. I’ve seen two warnings, each with two appeals. I’ve seen all sorts of things. As long as it’s not less than what Acas recommend in the code of practice, then that’s fine. So, having three warnings, having extra appeals, that’s all doing more than the minimum, so it’s allowable.

And the warnings have a life. And what the Acas Code suggests, is that the formal written has a six-month life, and a final written has a 12-month life. Now, you could have a shorter life than that. It would be difficult to have a longer life, because of course, what that life means is that if during the period of time that the warning is alive, you don’t improve, or you do the same wrong thing again, then we can go to the next level of warning. So, if the life is longer, then you’re extending the sanction. So really what we would normally expect to see is a six and a 12-month life, or less than that. And there is a need for informal warnings as well. And that’s not part of the procedure, but there should be a situation [silence 00:11:35] being given some indication that they’re not doing as you want them to do.

Now the Acas Code of Practice sets out three steps, and these are the three steps that you’ve got to follow in any disciplinary situation. And they’re not tricky, and this is why the employment tribunal don’t particularly like it if you don’t do them. So, what are they? Number one, you have to write to the employee setting out the allegation, giving a copy of the information you’re going to rely on. Now, that actually can be quite a difficult step. It’s not difficult to do the letter. But it’s difficult when you’re going to an employee, who you may well be sitting within the workplace, and handing them the letter. Because quite often, in my experience, what the employee says is…they read the letter and they say, “Well, I want to talk about it now.” And you say, “No, we’re not talking about it now. We’ll talk about it at the date that you’ve given for the disciplinary meeting.” “Well, what do you mean I’ve not done this?” Or, “What do you mean? What do you mean?” And you’ve got to say, “No, we’re going to have a formal meeting and that’s when we’re going to talk about it.”

And the time gap between writing to the employee and holding the disciplinary meeting should be long enough for them to prepare for the meeting. That’s why you’re writing to them because you’re giving them the information you’re relying on. So if you’re saying, “you’ve not turned up for work on time” then what you’re going to be doing is giving them a copy of the timesheet. If you’re saying, “your work has been poor quality” you’re going to give examples of what is poor quality. And then they’ve got to reflect on that.

If they want to be accompanied at the meeting, they’ve got to go and find a representative, talk to the representative, show the representative this information, so they’re ready for the meeting. Really, the gap between writing to the employee and holding the meeting shouldn’t be much less than 48 hours. And you’ve then got to assess the situation as to whether it should be much longer. But don’t make it too long, and try not to make it go over a weekend. Because yes, the employee has got to be prepared, but also most employees are going to be quite nervous, probably upset, and so don’t make it too painful an experience.

Then you’re going to hold the disciplinary meeting, and then ultimately if you impose a sanction, allow the employee to appeal against any sanction.

Now, at the disciplinary meeting itself, what is really important, is that the employee is given time to respond. So, a common question of an employment tribunal will be: Okay, so you had a number of disciplinary meetings. How long did that one last? How long did that one last?

And if it’s five minutes and six minutes, then the employment tribunal will take the view that obviously you rushed through it and you didn’t give the employee time to respond. So, make sure that you set out the issues; you then ask the employee what they want to say; you allow them time to say it, and always adjourn to consider what the employee has said. Even if what the employee has said isn’t that remarkable really, still be seen to have gone away and thought about it. And then the appeal should be to somebody more senior than the person who gave the disciplinary warning, who has not been involved in the decision about the disciplinary warning, if that’s possible.

In a small organisation, in a very small organisation, often there’s only one person who has got the authority to give disciplinary warnings, and there’s not somebody more senior to hear an appeal. But in a large organisation, there is somebody who could hear the appeal who has not been involved.

Now we’ve talked about disciplinary warnings so far. The session is about disciplinary and grievance. And maybe the reason we focus more on disciplinary is that it’s more common than grievances. But nevertheless, grievances do happen. They do get raised, and therefore we do need to understand them.

Now with grievances, if we go back to the Acas Code of Practice, there is a three-stage process. This time, of course, it’s started by the employee, because the employee is raising the grievance. So, the process is that the employee writes to the employer formally raising a grievance. The employer then arranges a grievance meeting, and much like the disciplinary meeting, holds a discussion; listens to what the employee is saying; adjourns; and then whatever decision is made about that grievance, the employee is allowed to appeal.

Now, if an individual has a grievance and they don’t put it in writing, do we, therefore say, “Well, it’s not a proper grievance, therefore we’re not going to deal with it.” Well, no. But we might try and keep it that little bit more informal. Somehow, when something gets into the formal grievance process, it gains a momentum that maybe sitting down and having a good old chat about the problem over a cup of tea, might have meant that it never became such a big issue in the first place. And to a certain extent, you have to exercise your judgement here. But once you have received a formal grievance letter, you have got to address it. And really once it’s become formal, you have got to go through this process.

Now, the importance of an investigation applies to both the discipline and the grievance. But let’s remember that we’re in civil law, not criminal law. So much as we’ve all enjoyed watching criminal law programmes on television, as I’m sure we have, and we’ve seen lawyers pacing up and down the courtroom and doing all of that stuff, actually we’re in civil law. And therefore, the important point is that in civil law we’re required to show that whatever is alleged, happened “on the balance of probability”.

In criminal law, we’re required to show that somebody is guilty beyond all reasonable doubt. And those two levels of proof are markedly different. Guilty beyond all reasonable doubt. And of course, that’s the reason that the Crown Prosecution Service decides not to prosecute in a number of situations. Because what they do, is they assess, is there going to be any doubt; because if there is, this case is not going to be successful. But in civil law, we’re just required to show, on the balance of probability — if we focus on what we are talking about today — the employee did as alleged, or the situation as described occurred.

So our investigation should be reasonable, and it should lead to a reasonable belief about what has happened. But that word “reasonable” is really difficult. It appears so often in employment law. ‘Reasonable’ what exactly does that mean? Well, what it means is that given the size and the resources of the business, the employer has taken care to find out the facts as much as they can. So it does mean going back over the paperwork, going back over the records, that sort of thing. But it doesn’t mean that we are required to prove what had happened.

And the other thing that I just wanted to emphasise is, that the right is to be accompanied by a colleague or trade union representative and that you, the employer, has very limited ability to veto the choice of representatives. And really the only reason that you could veto is if the employee walks in with somebody who is not a colleague, or a trade union representative.

But we all know that there are some representatives, some colleagues who are a little bit more difficult than others, and I’m sure we’re all smiling to ourselves as we think about the ones that are that little bit more tricky. But you can’t say no, you’re not bringing so and so as a representative because they’re a real pain, and they’re really difficult. You have to allow the employee the choice.

And if an employee arrives at a disciplinary or grievance meeting, and they’re not accompanied, that is their right. But always start off by saying, “As I said in the letter to you when I invited you to the meeting, you are entitled to be accompanied by a trade union representative or a colleague, who can see you on your own. Can you just confirm that that is what you actually want.” And if the employees says, “Yes, that’s what I want,” absolutely fine. But just make sure that you’ve asked that.

“What is a colleague who as the representative, is involved in the case?” Well, you see, that’s a really good question Sinead, thank you for that.

The employer has a very limited right of veto, and so really you would have to allow them to be the representative. Unless – I’m trying to think of the situation where you would say no – and I’m struggling really to think of a situation where it will be just viable to say no, even if they were involved. So, say you’ve got two employees who were…and it was suggested that they’d been doing something fraudulent together, and they each wanted to represent each other – you wouldn’t be able to argue with that.

If they were a witness, well probably, they don’t want to be a representative, but even if they were a witness, you wouldn’t be able to refuse them as a representative, if they were a colleague or a trade union representative.

Now of course, if they’re a witness, they might feel a bit awkward about it, and not want to be a representative, and that’s up to them. So if you as an employee were facing a disciplinary situation, and you went to a colleague and said, “Will you be my representative?” and the colleague said, “No, I’d rather not,” that is totally up to them and they can say no. But it’s you as an employer that can’t.

Actually, I’m going to move to my questions, because my first question over to you, is about representation. And so, I’m going to ask you my first question: Can an employee be represented by their solicitor in a disciplinary meeting?

Put your answers into Chat. No, no – we’ve got two nos. Got a no, and another, and a no, and a no. Got lots of nos going. Okay, let me ask you a different question.

I think everybody agrees the answer to the question is “no” so let me just subtly change the question.

Is there any situation in which an employee could be represented by their solicitor? Any situation in which they could?

Now, that’s rather killed the conversation a bit more. A McKenzie Friend, yeah. Right, a McKenzie Friend is somebody that accompanies somebody for moral support, so they’re not as such, a representative. But they are just there for moral support.

I wouldn’t allow a solicitor to be present for moral support actually, no I wouldn’t. If the solicitor was also a trade union rep, I suppose, yes. I mean I think it’d be an unusual situation but I think that is a good possibility. If it could lead to criminal proceedings, you’re getting into the right sort of area.

So, there’s been various cases, which has looked at this question. And the answer is, that if the outcome of the disciplinary meeting could mean that their career is going to end as a result, then they’re allowed legal representation.

And that could be, if it’s linked to criminal proceedings, for example, or it could be just the nature of what they’re accused of. But let me give you an example.

So, let’s say, for example, you’ve got a teacher, and they’re accused of having a sexual relationship with a child at the school. So, the school has a disciplinary hearing with them…and whatever happens. If it’s concluded that yes, they have had an inappropriate sexual relationship, then they would be dismissed.

But that dismissal hearing will not end the teacher’s career. What will then happen is that the school will refer the matter to the police and to the regulatory body, and the regulatory body will hold an investigation, and then a meeting. It’s the regulatory body that would strike the teacher off, or, there’ll be criminal proceedings. And if the teacher has had a sexual relationship with a minor, then they could be put on the Sex Offenders’ Register, and then again, they’ll be put on the barred list of the Disclosure and Barring system.

So, although the disciplinary meeting and the school is part of the process, it’s not the part where their career is over. And therefore, they would be allowed a solicitor when they’re into the meeting with the regulatory body, or they’re into criminal proceedings, but they still wouldn’t be allowed one in the school because that meeting in itself, isn’t going to end their career. It’s just a step along the way. So, on the whole, we’re not going to see solicitors at disciplinary meetings.

But just another question, sort of, building on that: Can you think of any situation where you might ‘bend the rule’ about it being a trade union rep, or an employee as a representative? Again, put your answers into Chat if you would. Any situations where you might allow somebody, a representative other than a trade union rep, or a colleague? No?

Yeah, right, brilliant Sinead. Someone with a disability, yeah. And Campbell said: learning difficulties. And Jen has said, yeah: a parent under 18. Yeah, they’re the two things that I was looking at. It all came at once there.

Yes, if you’ve got somebody that’s got a disability, which means that they might not fully understand what’s happening, so maybe learning difficulties, then yes, a reasonable adjustment would be to allow them a carer or somebody that understood the disability. And if the employee was aged under 18, it could be appropriate to have a parent, where somebody’s particularly vulnerable, yes. And I think that we are talking about somebody with a disability or somebody younger. And you’re right, that this is under the Equality Act, because if they’re disabled as defined in the Equality Act 2010, there is a requirement to make a reasonable adjustment. So that’s good.

So, here’s a question: If the employee has a written warning for poor attendance, and then has poor performance as well, can we move to a final written warning?

What do you reckon, yes or no? Got a few nos. Quite a few nos. Separate processes. Yes/no? Under “no”. Right, okay.

You are right, that you cannot build up warnings for different reasons, but there’s a little bit of a warning here from a case of BMI versus Jacks 2011. And in that case, what happened was that, the employee concerned was cabin crew with Bmibaby. She was given a disciplinary warning for giving the wrong meals to customers on the plane, and also for getting the destination wrong. You know, when you start off on the flight and they say, “Welcome to this flight to Rome,” she once or twice got the destination wrong. She also made an error when she gave the signal to the other cabin crew that it was safe to get up after the flight had taken off. She actually made an error in the signal she gave, and gave them the emergency signal. So that meant they started rushing through the plane shouting, “Brace, brace,” to the customers, which caused a lot of distress. And then she lost her identity card, which meant that she couldn’t work one particular day.

So, she’d done a number of different things, and what the employer did was, build up the warnings for each of them. And that was found to be fair, because each of the warnings were written such, that they were behaviour that could have endangered or upset passengers. And all of these things like: giving the wrong meal, getting the wrong destination, giving an emergency signal, losing your identity card – well, who’s got it? So, who might be going airside at an airport, we don’t want to.

And because it had been worded quite broadly, such that it was anything that could cause distress, or be dangerous for a customer, all these things were related. So, you’re all correct, all of you that said “no” but also, it’s a good tip. Don’t be too narrow. Don’t be ridiculously broad, but don’t be too narrow in the way that you word disciplinary warnings.

Question three: Can expired warnings be taken into consideration when deciding on what level of warning to give? What do you think about that one? So, if a warning has expired, can you take it into consideration? We’ve got a variety here. We’ve got yeses and nos.

Well, the answer is “yes, but.” Yes, we’ve got a “yes, but” there as well. Expired warnings can be taken into consideration. You consider past behaviour as a pattern of behaviour. Yes.

So, take the case of Airbus versus Webb. This was the situation where Mr Webb had had a final written warning previously. It had expired, and then he was caught watching television one day when he should have been working. And he was with a number of other colleagues.

The other colleagues all got disciplinary warnings, and he was dismissed. And he said it was unfair because his disciplinary warning was as clean as them. And that’s true – it was. But what the court said, is that you can have regard to previous behaviour and attitude in deciding on the appropriate warning, when something could be gross misconduct.

So, not working and sitting there watching television, is potentially gross misconduct. It may be a bit harsh, but it is potentially gross misconduct.

So, deciding on, “Well, am I going to be a bit lenient and give a final written warning, or am I going to go ahead and issue a dismissal?” In making that decision, you can look individually at each employee, and decide what their past record says.

There’s a case in 2017 of NHS 24 Versus Pillar. And in this case, it was a nurse that manned the phones, you know, the NHS 24, you can ring up if you’re not sure whether you need to see a doctor or whether you need to go to hospital and things like that. And she missed a case of, somebody was having a heart attack. She went through a question and said, “Well, you really ought to make an appointment to see your GP in the near future.” He was actually having a heart attack at the time.

Now, fortunately, he ignored her and went to hospital, and he was okay. But she was dismissed because she’d done that sort of thing in two similar incidents, previously. Now, she’s not been given a disciplinary warning previously, but it was found that it was sufficiently serious, what she’d done, for the past pattern of behaviour to be taken into account.

Can you refuse an appeal against a decision relating to a grievance?

So, somebody has raised a grievance. You’ve had the disciplinary meeting. You’ve written to them telling them what you’re going to do about it. They don’t like that. They’ve appealed, and can you say, “Look, we’ve been through it all. No, we’re not having an appeal.” Can you do that?

No. Two of you said “no.” Three, four. Five. Yeah, you’re right Andrew. If the appeal period has expired, yes, you could refuse it. So, when you say to somebody, they can appeal, you would normally say within five working days. If they then appealed after six working days, you could say, “Well, you’ve missed your opportunity.” Yeah, you could do that. But if they’re in time, no, you can’t refuse an appeal. You must allow them the opportunity to appeal, and you must hear that appeal.

I think we sort of addressed this earlier, but let’s just make sure that we all agree on the answer.

If the employee’s chosen representative is a known trouble-maker, can we refuse him or her as a representative?

And I’ve had lots of nos rush into the chat box, and you’re all absolutely right. And the case that confirmed this was TOAL versus GB Oils, 2013. And in that case, exactly this happened. Two employees facing disciplinary action, unrelated disciplinary action actually, and they both chose somebody who was a real pain as their representative. And the employer said, “Please choose someone else,” and they said they wouldn’t. So, they actually went ahead without a representative, and then went to the Employment Tribunal and said, “You should have allowed them their chosen representative.”

But Jenny you’re absolutely right. You can be really clear on what the rep’s role is, and absolutely, you can say to the representative, if they start to misbehave in the disciplinary hearing, “Stop it, and this is what you are and you aren’t allowed to do.” Absolutely.

Now my last question: If an employee’s performance starts to significantly decline as soon as a warning has expired, can we treat the warning as still existing?

And you know, when I was head of HR, this happened so often. You give a disciplinary warning, usually for attendance where I worked. And six months, the employee was as good as gold – six months and a day, and the problems would restart. So, can you treat the warning as still existing if the day after it’s expired, everything starts to go wrong again?

Yes Jenny, you’re right. No, you can’t treat it as still existing, but you can take it into account in the wider context. And it’s back really to the Airbus versus Webb case, where you can have regard to previous performance and attitude. You have a backsliding period that follows on from the warning period. Oh wow! I don’t think I’ve ever seen an organisation with a backsliding period. I learn something new every day. That is a really interesting idea, that presumably therefore what you’re saying is, you have that period of time when you can’t just suddenly go from being good as gold, back to awful. Right okay. Additional monitoring. It’s a really good idea. I like that one. There you go.

Right, now, I said that I’d tell you a little bit about how to avoid all the risks. So, the warning hasn’t technically expired. Yeah, do you know Jack, I was just thinking about that as I started talking about the next thing. So, I was talking away while my brain was still on the next thing.

You see, the Acas Code of Practice says for the first formal written warning, six months. And if you have 12 months of additional monitoring, then really what you’re doing is, you’re extending that six months. So, you’re being harsher than the Acas Code, and that would worry me. Yeah, I think you’d have to be very careful there.

So, how do we avoid the risks? Well, the first thing is, train line managers. You know, yeah, I would raise it with HR. Right civil service policy. Right yeah, raise it with HR. I’ll be interesting with their take on that. But do train line managers, and I find that just having this sort of ‘lunch and learn’ session, that it’s useful to talk with colleagues about what we’re doing. Because so often, little things creep into the process that maybe aren’t quite right, and it’s worth just revising what we do. We do need to train line managers; I think sometimes we presume that line managers know all these things, and they don’t necessarily.

The next thing is to review the policies. So, does your policy meet the requirements of the Acas Code?

Now, if you’ve got a policy that’s sent centrally by head office – fair enough. But all HR people in my view should have the Acas Code printed out and stored under their pillow, or at least in their top draw. But we should all be aware of what’s in that code.

If you’ve got examples of gross misconduct in your policy, doublecheck that it’s a non-exhaustive list. Because if you say “gross misconduct is,” and then employees do something that isn’t on that list, it doesn’t allow you to treat it as gross misconduct. And employees always do the thing you’ve never ever dreamt of, which is why HR is so much fun to work in.

And another thing just to check in your policy is, whether it allows you to go straight to a final written warning for situations that are like borderline warning dismissal. So, if you’ve got a situation where, do you know, it seems fair to dismiss, but you want to give the employee the benefit of the doubt – you don’t really want to just give a formal written warning. You want to say, “this is serious.” And many organisations have the right to go to a final written, for these borderline situations.

We’ve talked about investigations, but do make sure that there are always thorough investigations, and that you tell the employee what the findings of those investigations are. So that the employee has the chance to go away and think about it, to challenge it, to carry out their own investigation. But do remember that we are not required to act as criminal lawyers. We are looking at whether the employee has done as alleged, on the balance of probability.

Record. What I always say is, with most disciplinary warnings, you’re never in a situation where you’re going to end up in an employment tribunal, but let’s presume you are. So, treat everything as if it could end up in front of the tribunal. So, make notes of every meeting. Write them up. Keep records of everything. Write up witness statements.

One thing that’s really useful to do, is to have a notetaker at a disciplinary warning. And then get the notetaker to write up their notes and then send those notes to the employee, and ask the employee to either amend them if they think something’s wrong or if they think they’re right, to sign them as an agreed record of the meeting. And then you’re never in to the situation where you’re having an argument about what was said at the meeting.

The representative – we’ve talked about the representative once or twice. Just to clarify what the representative can do. They can address the hearing. They can put the employee’s case for them. They can respond on something that’s put to the employee. They can confer with the employee, but you can say, “Right Mr Representative, or Mrs Representative, just be quiet a moment, I want Fred here to answer this question because it’s really important that we hear from the employee.” And you can do that and insist that the employee answers a question.

So, talking of questions. It’s my turn to see if you’ve got any outstanding questions from the session before we get to the end: What level of investigation would you see as appropriate in a grievance?

Do you know, that’s really difficult because it totally depends on what the issue is. So, if somebody, for example, raises a grievance that they’re being sexually harassed – then I would expect you to take witness statements from those who might have witnessed anything. You would have to talk to the accused harasser as well. But if it was a grievance that I think, so and so keeps picking on me, and you again, I suppose, would be taking witnesses. It’s really difficult to say because it totally depends on the case. But what I would expect you to be doing is saying, “From the investigation I’ve carried out, am I able to answer whether on the balance of probabilities, whatever is alleged happened or not?” And that’s always your test.

Andrew says he finds keeping a chronology of events really helpful. I totally agree, and employment tribunals love chronology of events, because it’s really useful for you to be able to summarise and say, “This happened, that happened,” etc.

Would I not move to disciplinary in those circumstances?

It’s in harassment – I see. Yes, if somebody said, “I am being sexually harassed,” you would investigate it. If you found on the balance of probability that they were being sexually harassed, then you’re going to deal with their grievance and support them in what has happened. And yes, you are almost inevitably going to then end up in a disciplinary situation with the accused. So, you then would have two separate things going on there.

Although not disciplinary, I have seen the Attendance Management Policy that allows for managers’ discretion when using attendance warnings, some partly because of reasonable adjustments under the Equality Act.

Yeah, and it can lead to inconsistency. Yes, you’re right there, Darren. What you’re saying is that when you allow managers discretion on whether you issue warnings for poor attendance, then you do have the risk of a lack of consistency. And that’s why a lot of organisations have a process by, which if you have X number of days’ absence in a period of time, then you will get a disciplinary warning. But of course, that might not feel very fair if you’ve got an employee who’s been impeccable attendance for 20 years, and then suddenly has a bad spell of health.

So, I think having a trigger point is useful, but there has to be some human interpretation of that as well really, if that makes sense. But I agree, when you have just total discretion, then you have got a problem with consistency, I totally agree.

Okay, well I think I’ve answered all the questions, and we’ve got to 2 o’clock.

So, have I seen examples of organisation with total discretion that does work? No, I’ve not. I’ve seen examples of organisations with total discretion that leads to total chaos! But you see I tend to see organisations when it’s gone wrong – that would be why I see them. So, there may be lots of organisations working away quite happily, with total discretion, and it’s never been a problem. But I’ve not seen them.

So, my key summary is: please, please never forget the Acas Code of Practice Disciplinary and Grievance Procedures. If you’re not familiar with it, set it as your action point for the afternoon. Go to the Acas website, have a read through it. It’s not very long, and it’s quite a straightforward read. I personally…I know that it’s good to go paperless, but I think it’s so important to have it to hand. I’d either save it to my computer and highlight it there, or if it was a paper copy, and highlight it just with the key messages, so I never ever forget them.

Bullying and harassment

Bullying and harrassment

Kathy Daniels

Welcome to our Lunch and Learn session where we’re going to talk about bullying and harassment. And what we’re going to do is I’m going to take a bit of time to tell you some facts and some law about bullying and harassment, and then I’m going to turn it over to you and I’m going to ask you some questions and we’ll have a discussion about those questions. And then I’m going to talk again, and then finally, I will open up to any questions.

So, let me say welcome. My name is Kathy Daniels and that’s a picture of me. I have to confess, it’s a rather old picture now and I’m slightly greyer than that now. I’m one of the tutors in Employment Law programme here at the CIPD but my background is in HR. So I worked in HR from when I left university, worked in a couple of different companies. I ended up in a large manufacturing company with 2,500 employees, where I worked my way up the ranks and became Head of HR. Then 22.5 years ago, I had my first child and I gave all that up and I set up my own business. Initially, writing, talking, consulting on HR issues, but increasingly focusing on employment law.

And now, as I say, I do a lot of work with the CIPD and I running training sessions for them and I write for them, and I’m also a lay member of the Employment Tribunal, and I’m an Associate Professor in Employment Law at Aston University here in Birmingham, where I’m also the Associate Dean responsible for all the postgraduate programmes. And I do various writing and talking about employment law for a variety of providers.

But my passion very much is in understanding the law, yes, but understanding what the law means for us in the workplace. So I am going to refer to the law, I am going to refer to cases that have come before the court. But what I primarily want to do is for us to reflect on what that law means for us, so when we’re in the workplace and we’re dealing with potential situations of bullying or harassment, what legal issues should be going through our head to make sure that everything we do is correct and fair?

So today’s session is part of our Lunch and Learn series. We have five webinars, and for the sake of completeness, the other four are Avoiding Discrimination in Recruitment, Family Friendly Rights, Grievance and Disciplinary, and Achieving Fair Dismissals. And the purpose of these Lunch and Learn sessions is just to take an hour to highlight the key issues, what it is that we should be thinking about when we think about bullying and harassment, and, importantly, how to avoid risks and problems that might occur.

So, without further ado, I think we’ll start talking about bullying and harassment. So, let’s take harassment first, harassment or harassment, however you like to say it. Harassment is specifically defined in the Equality Act 2010 and the Equality Act 2010 is the piece of law where everything to do with discrimination can be found. If you’ve been working in HR for a while, you might be aware that there used to be legislation, like the Sex Discrimination Act 1975, the Regulations Act 1976, et cetera, et cetera. All of that law went and got combined into the Equality Act 2010. And the definition of harassment there is unwanted conduct related to a relevant protective characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

Now, there are a number of key points to pull out from that definition. First of all, harassment can be a series of events, and I’m going to keep flicking back to the definition. You see, it’s unwanted conduct, and unwanted conduct could be one individual thing, or it could be a pattern of behaviour, and it could be that in that pattern of behaviour, no one thing is so bad that it has the purpose or effect of violating dignity, et cetera. But when you add it all together and you look at that pattern of behaviour, then it does become bad enough. One very important thing to note is that it could be just one incident, if it is bad enough. And we’re going to look at one or two cases about that in a moment, but if I just tell you about Bracebridge Engineering Limited versus Darby, a 1990 case.

In this situation, the woman concerned had been accused of leaving work early on a number of occasions. She was walking to the wash rooms to wash her hands, she wasn’t actually leaving work, and some of her male colleagues saw her and thought that she was leaving work. They bundled her in a darkened room and they sexually assaulted her. And what they actually did was sufficiently severe for it to be criminal, what they did. That one event was sufficiently serious for it to be harassment. If it’s a series of events, and a good case of that is Strathclyde Regional Council versus Porcelli 1986. Again a woman, but this time it was a series of things. Her male colleagues brushing up against her, putting things on shelves where she couldn’t reach them, excluding her from meetings, all sorts of petty, silly things that on their own were not bad enough to be harassment, but when you add them all together, they were.

And the perception of the individual is important. I am going to tell you about three cases in a moment where we will emphasise this. Now this doesn’t mean that you could say something to me, I could be having a particularly grumpy day, and I go, ‘Yeah, that’s harassment’, because if we come back to the definition, that has just violated my dignity. It’s got to be reasonable. So I can’t say that any comment or any action is harassment because I say it is. But the Employment Tribunal will have regard for the perception of the individual and that will be part of the information that they use when adding it all together to say was this harassment?

So everybody has different levels of sensitivities. We could engage in some banter now, which we’re not going to do, but we could, and you could say something that I find offensive and everybody else thinks it’s totally hilarious, and vice versa. The perception of the individual does matter, but the individual has also got to be reasonable. And I think an interesting point as well is that the behaviour does not have to be directed at the individual for them to claim. And apologies, well, no apologies really, for flicking by the side, because I do want to keep coming back to this definition. Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating that intimidating, hostile, et cetera, environment, so there could be conduct related, let’s say, to sexual orientation.

So let’s say we could be in an open plan office where somebody, who is homosexual, is being teased about it. They think it’s hilarious, they’re engaging in it as well, everybody’s having a bit of fun, but I’m sat there and I find it offensive. For me, it’s creating an intimidating, hostile, degrading, humiliating or offensive environment and I could claim harassment, even though the behaviour is not directed at me, even though I’m a different sexual orientation, it doesn’t matter. So we do need to be careful of that. So it must also be related to a protected characteristic Now you may be familiar with the protected characteristics, you might not be, but in the Equality Act 2010, there are nine protected characteristics. They’re listed on the slide here, and for those of you that are calling in, I’ll just read them out.

So there’s age, disability, race, religion or belief, sex, sexual orientation and transgender status. Now for those of you that were counting on your fingers as you went, you’d be saying, ah, that’s only seven, and I said there were nine. That’s correct. Because there is also marital status or civil partnership, and maternity or pregnancy, but harassment specifically does not apply to those two protected characteristics. So although we have nine protected characteristics in the Equality Act, harassment only applies to those seven that I just read out. And that is important because people might be teased, there might be banter that goes on that people find unacceptable, but it’s related to all sorts of things that are not on that list. I’m not saying it is acceptable behaviour, but it’s only if it relates to those seven protected characteristics that an individual would be able to make a harassment claim under the Equality Act 2010.

So what is harassment? I keep saying that I’m going to talk about three cases, so let me talk about three cases, and obviously I’m choosing cases which are more borderline, I suppose. So if you think back to the case I just mentioned of the Bracebridge Engineering versus Darby, when I talked of a woman being bundled into a darkened room and sexually assaulted, I don’t think any of us would really have a problem with concluding that was harassment. But where case law is particularly helpful is where we see the more borderline things and we can think about the reasoning of the courts.

And so the first one is Richmond Pharmacology versus Dhaliwal 2009, and in this case, Dhaliwal was of Indian origin, she’d resigned from the organisation, and no problem in her resigning, she’d resigned to go and develop her career elsewhere. And right at the end of her notice period, she was having a sort of handover conversation with the medical director, and at the end he said, ‘Well, we’ll probably bump into each other in the future, unless you’re married off in India,’ and that was it. And she said that amounted to racial harassment Now some of you may hear that comment, I’m sure we all hear that comment and think how crass, and some of you may hear that comment and think, do you know what? That is completely unacceptable. Some of you may hear that comment and say, ‘Well, really, that was a stupid thing to say, it shouldn’t have been said, we understand why Dhaliwal was upset, but it was only the one comment,’ and it was the one comment. And therefore some of you will be saying, ‘I don’t think that is harassment’ and some of you will be saying, ‘Actually, I think that’s awful.’

And the Employment Appeal Tribunal in their judgement said that this was a borderline case, but, what I said was, you’ve got to go back to the definition. So let’s just go back again. Did it have the purpose or effect of violating Dhaliwal’s dignity? Yes, it did. It didn’t have the purpose. The medical director said, ‘I never meant anything by it and as soon as I said it, I thought, lost for words, I just said that, but yeah, I did say it. It wasn’t what I meant to do,’ but that doesn’t matter, it’s the purpose or the effect. And therefore that was found to be harassment.

Let’s contrast that with the case of Quality Solicitors versus Tunstall 2014. Tunstall overheard a colleague talking about her on the telephone to a client. And the colleague allegedly said about Tunstall, ‘She’s Polish, but she’s very nice.’ Now the colleague said, ‘I did not say that. What I said was, she’s Polish, and she’s very nice.’ But Tunstall said, ‘Well, that doesn’t really matter. Whether you said and or but, what you were saying was that you felt it necessary to qualify that even though I’m Polish, I am nice, and that is racial harassment.’ Now here the Employment Appeal Tribunal said, ‘No, that is not sufficient to amount to harassment.’ And this comes back to the point I was making earlier about the perception of the individual. Yes, we can see why Tunstall found it violated her dignity, but it wasn’t bad enough to reach that definition of harassment. So I hope that what you’re seeing is that the case law on these borderline issues makes us think, and that’s always important.

And then the final case I wanted to just talk to you about just now is Moonsar versus Fiveways Express Transport 2004, and this is an interesting one. So thinking about this point of whether the behaviour has to be directed at someone for it to be harassment. Moonsar worked in an open plan office with a group of men, she was the only woman working in the office. On a number of occasions at lunchtime, the men would gather around a laptop and snigger. She never saw what they were looking at, they never showed her, they never asked her to look at it, she never saw it as she was walking past, but, from the sort of conversation that the men were having, she was fairly certain they were looking at pornography, and they were.

She took a claim of sex discrimination, claiming that being in this office with the men whilst they were looking at pornography created a hostile, degrading, intimidating and offensive environment, and that amounted to sexual harassment, and she was successful in her claim. And I think the Moonsar case is one to tell line managers about, when line managers say to you, ‘Oh, don’t worry about the chat that’s going on, everybody finds it funny, it’s just a bit of banter.’ And there is that balancing act, isn’t there? Because we spend an awful lot of our lives at work and we are allowed to have some fun at work, but I think we can all see that we can have fun without people getting offended.

So that’s harassment. Now I want to talk to you about bulling. And first of all, I want to go to the CIPD definition. And the CIPD defined bullying and harassment with highlighting a number of actions and behaviours that could amount to bullying and harassment. I appreciate that some of you can’t see the screen, so I’m not going to read every last one of them because there are over ten on the screen, but I’m going to just pull out some of them. Unwanted physical contact, that’s a very interesting one. How do you know what’s unwanted physical contact? Some very people are very huggy, aren’t they? Some people really don’t like to be hugged. So I always work on the basis, don’t hug and then you’re okay. Unwelcome remarks about a person’s age or dress or appearance or race or marital status, jokes at personal expense, offensive language, gossip, slander, sectarian songs, letters. Pressure to participate in political or religious groups. Personal intrusion from pestering, spying and stalking. Shouting and bawling, personal insults. These are some of the examples from CIPD definition.

Now you may be saying, okay, so when we started off talking about harassment I gave you a definition from the Equality Act 2010, but why don’t I give you a definition from some act about bullying?’ Well, the answer is, there is no specific law relating to bullying. A lot of situations of bullying relate to one of the protected characteristic that I listed earlier, and therefore get taken forward, if they are taken forward in legal action, as harassment claims. But if we are in the situation where the facts of what’s happening do not meet the definition of harassment, or the target for the bullying does not relate to a protected characteristic, then obviously we can’t take a harassment claim, and there is no bullying law. But, having said that there’s no bullying law, there are potential claims that somebody could take who is being bullied. 

The first is Health and Safety, so under the Health and Safety at Work Act 1974, there is a duty on the employer to provide a safe place of work. And when I say that, you probably immediately think of people tripping and slipping and all those sorts of things. Safe also means psychologically safe. And if somebody is being bullied at work such that it is damaging their mental health, then it could potentially lead to a personal injury claim under the Health and Safety at Work Act 1974. That is a possibility.

The other possible claim is the breach of the applied term of mutual trust and confidence. The Contract of Employment is made up of both express and implied terms. So the express terms are those that we discuss and agree, and typically those that we find in writing in a document titled Contract of Employment. But the implied terms are equally important, and why the implied terms that we take as read as being in every Contract of Employment is that of mutual trust and confidence. And basically, what we’re saying is, that the employer and the employee will treat each other decently, and if an employee is being bullied, then arguably they’re not being treated decently. And if the individual wants to argue that they’ve suffered a breach of the term of mutual trust and confidence, then the individual would have to resign and claim constructive dismissal. And to do that, the employee needs at least two years’ service with the employer.

The main cases where we’ve seen this being used successfully have been where there’s been particularly aggressive behaviour from management. So rather than me trying to describe, let me just tell you of a couple of cases. Morrow versus Safeway Stores, and in this case the employee worked in the bakery department in Safeway and she had burnt some bread again, and her manager gave her a dressing down and was shouting at her in front of other colleagues and customers that were walking by. And that was seen to be a breach of mutual trust and confidence.

A case of the Isle of Wight Tourist Board versus Coombes 1976. In this case, Coombes was the personal assistant to the chief executive of the Tourist Board, and one day he said to her, in an open plan office, where there were junior colleagues present, ‘You are an intolerable bitch on a Monday morning.’ And she resigned and successfully claimed a breach of mutual trust and confidence. And I think we can see how both of those situations amounted to behaviour that crossed the line, was unacceptable, and was bullying.

And one last point before I hand it over to you to answer some of my questions, vicarious liability. Now assuming it’s about harassment and bullying, it’s done by people, it’s not done by the organisation. So as I said, I am the Associate Dean at Ashton University. I hope nobody has ever bullied or harassed there, but if they were, it would be by an individual, it wouldn’t by the university. But having said that, the employer is liable for all that the employee does in the course of employment, and that is referred to as vicarious liability. So the employer is liable for any bullying or harassment that is taking place, even if it doesn’t know that it is happening.

And here we have a case of Jones versus Tower Boot Co in 1996. In this case, a really upsetting case, I think, a 16-year-old Afro-Caribbean lad was in his first job and a small group of white men in their 50s objected to his race and they threw metal bolts at his head, they branded him with a hot iron, they called him the most disgusting names. And bless him, he stuck it for three months and then he resigned and he claimed race harassment. And his employer said, ‘He should have told us. We didn’t know it was happening. And we’re really sorry it did happen, but we’re not liable because we didn’t know.’ And the court said, ‘You should have known. A good employer knows what’s happening.’

So saying you don’t know that it’s happening is never going to be justification. In some rare situations, a harassment claim is brought against the individual as well as the employer, and this tends to be when the individual has done something particularly awful, really, but on the whole, when an employee brings a claim of harassment, they are going to bring it against the employer.

Now, that’s given you, hopefully, a good overview of harassment and bullying and now it’s my turn to shut up and your turn to answer some questions. So, what is a possible remedy for harassment?

I do appreciate that a code of conduct, yeah, we do need to follow the code of conduct, you’re absolutely right, and there are various codes of conducts. If you go the Equality in Human Rights Commission website, then you’ll find a lot of guidance on conduct for harassment. And the remedy: so the remedy is if somebody brings a claim of harassment in the Employment Tribunal, and they are successful, then they are going to get some compensation. And it is financial. Yes, thank you, Christine. And it is uncapped. So there is no limit on the compensation that can be awarded. And that is something to be very careful about, and again, when you’re training line managers, something to make them a little concerned about, the compensation is uncapped. And you also said action taken against people, yes, so let me explain a little bit about that.

First of all, the Employment Tribunal can make recommendations, so what they can say is, ‘These are the things we recommend the organisation should do,’ but they can only do those to address the harassment that has occurred and the impact that it’s had on the individual. And if the individual has left the organisation, then there are limited recommendations that they reasonably could make. Also, they can make a declaration that simply says, ‘You’ve been discriminated against, harassment is a form of discrimination.’ And quite often, in my experience, that really matters to people. And then of course the other thing is that the employer itself needs to go and investigate what’s happened, and you’re quite right, action might need to be taken against the person that did the harassment. In fact, I think it almost always is going to be, and also thinking about things like a safe forum, thank you from Dee, thank you very much there, a safe forum to discuss issues. So those are some of the recommendations that could be made. So that’s my first question and there are only six.

Can anybody claim third party harassment? And what we mean by third party is harassment from somebody other than an employee of the organisation. So, for example, if I worked in the retail sector and I was harassed by a customer, can I bring a claim of third party harassment? Let’s everybody have a go, just stick yes or no in the chat. Thank you, I’ve got a yes. Anybody else? Yes, yes, yes. Oh, lots of yeses. Lots of yes. If the manger allows the behaviour, yeah, that’s a good point. Well, I think everybody is saying yes, and the answer is, well, yes and no.

So, first of all, third party harassment was in the Equality Act 2010. It was specifically in there and it was designed as a situation when the employee had been harassed by a third party on at least two occasions. The manager knew about it and nothing had been done to resolve the situation. But the government decided that that was too difficult for employers to abide by and so they removed it. So in the term of a third party harassment claim, no, that can no longer be taken. But before we all sit back and heave a big sigh of relief and think, right, that’s one less thing for us to worry about, there is the possibility that if an employee is being harassed and the employer does nothing about it, that they could argue that there’s been a breach of mutual trust and confidence.

So let’s go back to my retail sector situation. Let’s say we’ve got a customer who comes in regularly, who is regularly abusive to me, and let’s say the customer is regularly abusive to me because I’m a woman. And my employer knows about it, I’m upset. I go to my line manager, I say, ‘Fred, this customer keeps coming in. He comes in every day and every day he’s really abusive to me,’ and my manager does nothing about it, then, arguably, the manager has breached the implied term of mutual trust and confidence that is in my contract of employment. And if the behaviour builds up and it makes me ill, then, potentially, I could claim a personal injuries claim under the Health and Safety at Work Act 1974, because my employer has not provided a safe place of work psychologically for me. So when a third party harassment is not specifically in the Equality Act 2010, that doesn’t mean that we can just ignore problems that occur from third parties.

So, question three. Who has to prove that harassment has or has not taken place? Is it the employer or is it the employee, or does nobody have to prove anything? Again, stick your answers into chat.

Employer, with a question mark. Thank you. Employer, employee, employer, the claimant, employee. We’ve got a bit of a mix here. It’s always fun to see a bit of a mix. We’ve got one, the employer. Right, to let me tell you.

It’s a problem with all discrimination claims, as well as harassment and, as I said earlier, harassment is a form of discrimination. How do you prove it? So how do you prove that something has been happening, particularly if the harasser is being particularly devious and making sure that there’s nobody around when they’re doing whatever they’re doing? Well, the process is that the employee or the claimant, and you’re quite right, Ed, to use the word claimant if we’re in a Employment Tribunal, the claimant has to show that something has happened that isn’t acceptable, on the balance of probability, and then the burden of proof shifts to the employer to show a non-discriminatory reason for the treatment.

So, if, for example, somebody is saying, ‘Right, I was having my performance appraisal and it all degenerated and my manager was particularly aggressive and hostile and said a lot of really nasty things and totally humiliated me. I’m really upset.’ And the manager is saying, ‘No, I didn’t. All I did was go through a list of things that this employee has not done correctly and that’s what the appraisal is all about really, isn’t it?’ So there are no witnesses, it was a one-to-one appraisal, so all the employee would have to show is that it’s possible that this really did happen, it’s a very low standard of proof. And here what the Employment Tribunal would be doing is things like, ‘Have there been similar complaints?’ They would be listening to the evidence that the employee put forward, how plausible was it? And if it seems that maybe something has happened, then it would be for the employer to show that either it hasn’t happened, or that what happened quite simply was not harassment, that it wasn’t discriminatory, that there were some performance issues that needed to be picked up on and that’s all that happened.

Okay, question four. Right, so this is a nice straightforward question, maybe. If an employee is constantly teased at work about the football team he supports, what claim could he potentially take? So if he’s teased at work. Let’s just separate this out into part A and part B. First of all, can he make a harassment claim if he’s teased at work? So we’ve got a no, lots of noes. You’re right, yes. And Ed has just said the crucial bit.

So the football team is not a protected characteristic. I have had people in the past try and argue with me that it’s a religion or a belief. I’m not sure we can actually get very far with that argument, although I do accept that there are some football teams that historically are tied up with religion. But anyway, we won’t go down that route. The football team is not a protected characteristic, so he’s not going to be able to take a harassment claim. And Michelle said bullying, absolutely, but of course bullying in itself, there’s no law, so therefore Ed has broken that down a little bit further for us and we’ve got the possibility that he could take a personal injury claim, but he is going to have to show that this constant teasing is causing him damage to his health, that he’s not got a psychologically safe place of work, which he might be able to do. Or, if he’s been to his manager and he’s said, ‘Look, this is getting me down, it’s upsetting me, can you stop it, can you make them stop it?’ and the manager has just laughed and said, ‘Oh, get over it,’ then, potentially, he could bring a breach of contract claim for a breach of the implied term and he would be resigning and claiming constructive dismissal to do that. So thank you for that.

Let’s look at question five. How long must the employee have worked for the employer to bring a claim of harassment? Would you like to answer that one for me?

So we’ve got two years, zero, over two years, zero, just like a discrimination claim and no minimum, zero, immediately, zero, no term.

The answer is that no qualifying service is required. So going back to what I said earlier, harassment is a form of discrimination, and to bring a claim of discrimination, there is no requirement to have any qualifying service. And it’s also worth us just reminding ourselves that it’s not very common, but it is possible that an applicant for a job brings a discrimination claim. I think, I hope, it’s unlikely that anybody could bring a harassment claim. They might bring a claim that they didn’t get the job because of a protected characteristic, so, ‘I applied for a job, I didn’t get it, and I believe I didn’t get the job because I’m a woman.’ Thankfully, the selection process, the interview, the testing, whatever takes place, is never going to involve any harassment, although I guess there’s the odd situation where it possibly could. But to bring a claim of harassment, there is no qualifying service required.

And now my last question. To be successful in a constructive dismissal claim, what must the employee show? And if you remember from what I said earlier, to bring a claim that there had been a breach of the implied term of mutual trust and confidence, the employee resigns and claims constructive dismissal. So what is the key point that the employee has got to show in those sorts of cases? Does anybody want to have a go? What’s the first hurdle?

Yeah, the environment made the position untenable and you’ve got to have a qualified period of service of two years. The employer was aware and did nothing about it. Yes, and then both what Ed and Sue have put here are exactly right, basically that it’s a breach of contract. So what you’ve got to be able to persuade the Employment Tribunal is that whatever has happened is sufficiently bad that it is a breach of contract. And it therefore does demonstrate that if there’s something that happens that isn’t acceptable but it’s not particularly bad, it’s probably not going to be a constructive dismissal. We have got to have that breach of contract, it’s got to be... One reason, or part of the reason, that the employee resigns, and the employee has got to resign in a timely manner.

So I have a friend – I have more than one friend actually – but I have a friend that phoned me up some months back and said, ‘I’m going to resign from work because I’m being sexually harassed.’ And I was like, ‘Oh, gosh, right, tell me more?’ And she said, ‘I’m going to claim constructive dismissal, but what I’m doing first is I’m finding another job, and then when I’ve found another job, I’ll resign then, and then I’ll claim constructive dismissal.’ And I said, ‘Don’t waste your time,’ because what we’re saying is that if what is going on is so bad to be a breach of contract, you can’t stay. And if you’re saying it’s so bad, but I’m going to hang around for a few months while I look for another job, then it’s not really breach of contract. So it doesn’t mean that you’ve got to resign the second it happens, but in a timely manner. So it’s got to be resigning because of what’s going on, not, ‘I really don’t like it but I can stick it and I’ll just resign when I’ve found another job.’

Okay, so thank you for answering those questions. Before I open it up to any questions... Ah, and here is early question, so I will interrupt myself. What if the employee has financial issues and cannot resign straightaway because she has no other choice? Do you know, that’s a really good question and I think it’s a reason that there are... Well, I think it is a big reason, that there are employees that undergo really horrible bullying at work and stick it. Because if the employee can’t resign straightaway because of financial issues, then what you’re actually saying is that the financial issues, in some way, are bigger than the situation that’s occurring. If there is a breach of contract, then the employee has got to resign in a timely manner. And saying, ‘Well, I couldn’t afford to do so,’ really says, ‘Well, I couldn’t afford to do so and I managed to live with the situation.’ So the conclusion then is, it wasn’t bad enough to be a breach of contract. So I do agree that in some ways it seems a little bit unfair, and it also seems unfair that you’ve actually got to resign. So the ‘employer’, in inverted commas, because as we said earlier, it’s always an individual, is doing something that makes your life unbearable, you have to resign, you have to give up your salary, and you don’t have a guarantee that you’re going to win a constructive dismissal claim.

So you’ve gone on to say, ‘I have a friend who accepted a role working nine to five but asked if she could work eight till four, but then due to her always coming in earlier, she asked if she could do seven till three, which they agreed verbally. She’s been doing it for three years and now they are constantly asking her to do nine to five, despite the agreement.’ Well, if she’s been doing seven till three for three years, then it would definitely be an implied term of the contract, and therefore insisting that she works nine till five without consulting her would be a breach of contract. And if they’re making her life miserable over it, then it potentially is a breach of the implied term of mutual trust and confidence as well. But unfortunately, if she’s going to do a claim for constructive dismissal, it does involve her resigning.

So, the risks. How do you overcome all this? Because in some ways it can seem a bit daunting. There you are, the open plan office, Friday afternoon upon us now, you’ve got a lot of employees who may be winding down a bit, they’re laughing and joking, and what should line managers be doing? Should they be stopping people every time they say something that potentially might offend somebody? Because it’s not too difficult to find somebody that can be offended by something. Well, we spend a lot of the time at work and we should be able to have fun at work, but we can have fun without engaging in conversation that might upset people. So we do need to train line managers so they understand what bullying and harassment are. And I think what is really important is to make sure that people realise the breadth of the definition, that it could be one event, it could be a series of events, it doesn’t have to be directed at an individual.

And then to understand what to look out for; what are the sorts of things that might be going on, is somebody getting very withdrawn? Everybody picking on somebody. Pictures going up on the noticeboard that are unacceptable. Just thinking about some of the signs. Somebody that’s usually quite happy at work seeming quite tearful or very quiet. These are the sorts of things that line managers should be on about. You remember that case of Jones versus Tower Boot that I referred to with the Afro-Caribbean lad? The management said they didn’t know it was happening. They should have spotted that something was going on. I think also line managers have to think about their own management style because people do look up to those who are more senior and they do emulate them. So if line managers are engaging in behaviour that is borderline bullying or borderline harassment or it is actually bullying and harassment people will think it’s acceptable. And to give examples of unacceptable behaviour, I think that is really important as well.

I did notice that I’ve missed out a question, very many apologies, and it’s from Ed. I’m sorry that I missed it out but let me come to it now before I go onto the next thing.

Has there been a successful constructive dismissal breach of contract claim where an employee has still worked through their contractual notice period? I can’t remember the case law but I can remember reading a case some time ago. Yes, there have been cases, and I can’t think of the name of the case off the top of my head, where individuals have worked through their contractual notice period. The one case that I’m thinking of, and I just can’t think of the name of it, you’d have to give me time to look it up and I could let you know, is when somebody genuinely thought that they had to work through their contractual notice period and that’s the only way that they would be able to proceed with a claim. So there was a lack of understanding there. But I’m sorry, that is not a case that is in my brain at the moment, but I can get back to you on that.

Review on policies, what does your policy say? Did your policy explain what bullying and harassment is? So first of all, does it explain? But secondly, does it be sufficiently open? Because whereas I think if we were going to spend another hour on this topic, we could get a flipchart out and I could say give me examples of bullying and harassment, and I think we could all predict some of the things that we would have written up on that flipchart by the end. But also, there are all the other things that maybe are more subtle and maybe are less common. So I think the policy needs to explain these are the things that could be bullying and harassment, but also leaves it open for all the unexpected situations.

Also, in our policies, we need to be dealing with two people, so we need to be saying to the person being bullied or harassed, ‘If you’re experiencing this, this is the support available to you and this is what you should do.’ But we should also be saying to the person doing the bullying or the harassment that we, as an organisation, will take it incredibly seriously and it is potentially gross misconduct. We can’t say it always will be because every situation ((0:46:54?)) of course, but if it is gross misconduct, that will mean dismissal. There needs to be an explanation of the complaints procedure and I think it’s really worth looking at your bullying and harassment policy to make sure that’s very clear and very simple to follow. Because somebody who is being bullied or harassed, their confidence is being knocked in most cases, if not all, and they’re really feeling battered. And if you’ve got a complicated process that they don’t really understand, they’re not as resilient as normal and they’re less likely to follow it.

And does your policy promise confidentiality as much as possible? Because of course we have to remember the basic premise that people are innocent until proven guilty. And so if somebody says, ‘I’m being harassed by Fred,’ we’ve got to do Fred the service of checking out what’s really happening. First of all, is it all made up? Because people do do malicious things like that. Secondly, is it behaviour that is not very good but it’s not bullying or harassment, or is it absolutely unacceptable? But we’re going to have to go and talk to him. So we can’t promise 100 per cent confidentiality because we don’t need to rush to Fred and say, ‘Oh guess what? So and so has just said this about you,’ but as the allegations are put to Fred so that he can respond to them, he’s probably going to have a pretty good idea of who has said what.

And does the policy also allow the employee the option of not reporting the problem to their line manager? There are so many policies that say in the first instance, you should go to your line manager. What if the line manager is the bully or the harasser? Then that really doesn’t work. So is there that option? And let’s not presume that employees will work that out for themselves, because, as I said, they’re at a time in their life when they’re feeling a bit battered. It’s really important to investigate and talking to people who have witnessed it. If nobody has witnessed it, don’t presume that means that it’s not really happening. A polished bully, somebody that really does go out there to bully people, is pretty good at hiding what’s going on and won’t bully somebody when there are witnesses around. So always investigate the allegations, and keep the complainant informed.

So it may be you’ve got a lot of people to talk to, it may be that it’s going to take a week or two to get through everybody and to really investigate properly, but you can have a couple of informal meetings with the complainant during that time, saying, ‘I’m still investigating. How are you feeling, how are you doing? Is there any support that I can give you?’ in a neutral way. So we’re not saying, ‘At the moment we’ve upheld your complaint,’ but all we’re just saying is, ‘You’re upset, so what can we do to support you?’

And then a period of time to review the management behaviour. How do the senior management behave? There are people in organisations, and I’ve worked in many over the years, and I can look back and I can say, ‘Oh, so and so was always like that, he was a real bully, everybody knew it, it was accepted.’ Well, it’s not acceptable, and as I said earlier, if we’ve got senior people who behave as bullies, people see that behaviour and they presume that it’s accepted. So, as HR people, we have got to be prepared to challenge the behaviour of people, at whatever level of seniority, in an appropriate way, to say that bullying or harassment does not become acceptable in the organisation.

And finally, we do need to support the person who is bullied. If somebody is complaining of bullying or harassment and following your investigation you conclude that, yeah, they most definitely have been bullied or harassed, in some ways that’s a bit more straightforward for the support than if you’ve conclude, no, that was not bullying or harassment. But what we do have to remember is that presuming that the individual has not made something up maliciously, and very few people do, we do have to remember that they’re upset. So things you can do is put in place a mentor or a buddy. You could consider moving them into a different workplace, but we need to be careful with that because they might see that as a punishment. It might be that the right thing to do is to move the person who’s been doing the harassment and bullying. Of course it’s not always that straightforward, because if you’ve got a particularly unique skill where you’ve got a small group of people doing a particular job and there’s no one else for them to do it, then that doesn’t work very well.

Carry out regular reviews and go back to the individual, ‘Are you okay?’ and see if you can minimise contact with the bully, presuming that the bully is staying in the organisation. And then if you’ve got employee assistance programmes, they’re a good thing to use. And if you’ve got mental health first aiders, which a lot of organisations do now, even if the individual is saying, ‘Well, it hasn’t actually damaged my mental health,’ we don’t need to have a mental health disorder to be damaged and being bullied or harassed is going to have some impact on mental health. So using that sort of support system can be very useful.

So, that’s all I wanted to say, so that leaves me to ask if there any questions. We’ve got four more minutes.

Could mediation also be appropriate? Yes, thank you, Michelle, yes, that’s very true. And sometimes I think that can be really useful when there’s behaviour and it’s not malicious bullying. When it’s malicious bullying, we’re down the disciplinary route, but when it’s two people that just aren’t getting on, mediation can be really useful. ACAS run that sort of service. Yeah, a softer approach can be helpful and sometimes it is about saying to people, ‘Do you know how you’re coming over?’ And definitely there are times when people are really upset that they’re being accused of bullying, because once it’s been pointed out to them, they can say, ‘Yeah, I can see how that’s been interpreted,’ but they never ever meant it that way. Yes, when you arrive, nip it in the bud, stop it before it gets any further, and that’s why, as I said earlier, managers need to know what’s going on, because if you know that it’s happening, you can stop it before it gets into a formal bullying and harassment complaint.

Thank you very much for your time today. I’m glad that some of you are posting and saying it was very useful. It’s great to have your contributions. Thank you and have a lovely weekend when we get there.

Achieving fair dismissals

Achieving fair dismissals

Kathy Daniels

Let me start off with the introductions. My name is Kathy Daniels, and that's actually a rather old photo of me now, I think I've gone quite a bit greyer than that. My background is in HR. When I left university, a very long time ago, I went into HR with Land Rover, and then with a company called Avery that makes weighing machines, and I worked up through the various ranks and became Head of HR there, a company with 2,500 employees. Then just over 22 years ago I had my first child and I gave up that role, and I set up my own business, talking, consulting, and writing about employment law. And it's employment law that really is my passion.

But I'm not a lawyer. I've never trained as a lawyer. What my passion is, is understanding the law so that we use it appropriately in the workplace to protect both the employer and the employee. And that's very much going to be the focus of what we talk about today as we talk about dismissals. We're going to talk about how the law protects both the employee, but also as an employer what we need to understand about the law. So my background is as a practitioner, but today I am an academic, I am an Associate Professor in Employment Law at Aston University in Birmingham, where I'm also the Associate Dean responsible for the postgraduate programmes.

Today's session is part of our Lunch and Learn series. We have five different Lunch and Learns. Just for the sake of completeness the other four are, avoiding discrimination and recruitment, family friendly rights, bullying and harassment, and grievance and disciplinary. Why five? Why those five titles? Well, the reason is that these are the five topics that we find that HR people are asking about most often. So, when we thought of putting together the lunch and learn series, what we wanted to do was to have a bitesize chunk of information so that HR people could explore some of the issues that take up most of their time.

When we're talking about a fair dismissal today, what we're doing is we're talking about a fair reason for dismissal and a fair procedure for dismissal. That is where we're going to start in just a moment, working through what is fair. Of course, we could have called the session unfair dismissal, but I prefer to focus on the positives and to think of ways of doing things fairly, rather than ways of solving the problem once things have been done unfairly.

So, let us start now by talking about dismissals. The first thing that we need to know is that for a dismissal to be fair there must be a fair procedure and a fair reason. One of the things that I do do that I didn't mention at the start actually, is that I sit on employment tribunals in Birmingham as a lay member. Whenever we're faced with an unfair dismissal case, and of course lay members don't sit on dismissals as much as they used to, we used to sit on all of them, but there's always that question why have you dismissed, and is it one of the potentially fair reasons? And what procedure did you follow, and was it fair? So, they are the things that primarily we're going to explore today.

Before I do that, there is a need as well just to think about this word 'fair', because what you may say is a fair dismissal in the circumstances, to me might be too harsh, and vice-versa. So, how do we decide if it was right to dismiss? Because there is subjectivity in the process in deciding whether and employee has done something bad enough to warrant dismissal. And here what we come to is the range of reasonable responses, and this comes from the case of Iceland Frozen Foods versus Jones, in which it was accepted that there will be times when one manager will dismiss and another won't. And it's not that one is right and one is wrong necessarily, it's just that people have different assessments of what warrants dismissal. The employment tribunal cannot substitute their own decision for that of the employer. What that means is that the tribunal can't say, "Well, if it was me I wouldn't have dismissed", or, "If it was me I would have definitely have dismissed". They can't say that. All they can say was, "Was there a fair procedure? Was there a fair reason? And then was the response within the range of reasonable responses?". Determining this range of reasonable responses will have regard to the circumstances and the situation.

One of the last unfair dismissal claims I sat on as a lay member was one for pushing a colleague, so just reaching out and pushing a colleague. I work in an office environment at the university, and would it mean if I push a colleague, which I'm not planning to do, it would not be appropriate behaviour, but if I just pushed a colleague out the way, say, should I be dismissed for that? Really? And maybe you're starting to think, 'Gosh, whoever that manager was that dismissed was very, very harsh, this is a little bit unfair'. But the scenario was that these employees worked in a foundry, and there were a number of open fires where they were putting in metal to melt metal so that they could bend it. I'm talking of foundries, I'm talking of very, very hot fires. If somebody had fallen into one of those fires they would be dead, there is no other option. So the company had a very, very strict no running, no pushing, no shoving, no messing around rule for those that were working near these open foundries. And when an employee pushed another, that was gross misconduct, it was a really serious. Hopefully by giving you that example, what you can see is that we can't always have hard and fast rules. So if I said to you shoving someone is gross misconduct and they should be dismissed, that would be wrong in some organisations, but in the foundry it was completely right.

I remember another tribunal I sat on where an employee had gone outside to have a cigarette, as many employees do, and had smoked in an area where it clearly said do not smoke in this area. It wasn't a covered area, it wasn't that he was breaching the smoking rules in the Health Act, but he was dismissed. Seems a bit harsh. But what if I tell you, quite correctly, that it was a chemicals' factory, and there were very flammable chemicals being stored in that factory near the area where he chose to light up a cigarette. Now we see the dismissal is reasonable. So we have to have regard to the circumstances, and we have to look at each situation on its facts.

Now, let's first of all look at what the fair procedure might mean. The fair procedure quite simply is the Acas Code of Practice, Disciplinary and Grievance Procedures. Not following it does not mean that a dismissal is automatically unfair. However, if you have not followed it the employment tribunal would want to know why, and they would want to know a good reason why it's not been followed. It's actually an incredibly straightforward procedure, and to be perfectly honest, you're not going to have a good reason for not following it. So, all HR people who might as part of their job have to deal with discipline or grievance or dismissal situations, should know the Acas Code of Practice very thoroughly. You have got to follow the procedure, and not following it is always going to be difficult to justify.

If you don't follow it and an employee brings a claim of unfair dismissal and is successful in their claim, then any compensatory award that they are given can be increased by up to 25%. It's worth noting as well, that if an employee is successful in a claim of unfair dismissal and the employee has unreasonably not complied with the Acas Code of Practice, Disciplinary and Grievance Procedures, then the compensatory award can be reduced by up to 25%.

Quite simply go on to the internet, Google the Acas Code of Practice, Disciplinary and Grievance Procedures, and make sure that you've got a copy to hand. Make sure you've got the most recent version, which was March 2015, it was altered then. But if you go to the Acas website you'll only find the one version, the most up-to-date. I do keep referring to the Acas Code of Practice, Disciplinary and Grievance Procedures, which is a little bit of a mouthful, but there are five different codes of practice that Acas have issued, and therefore I'm just trying to make the point, which is one we're talking about. But from now on I will just refer to the Acas Code, because I think we're now all comfortable with what it's called.

So what does it say? Well, it says that there are some key principles of a fair dismissal, and these are the things that the Acas Code expects to happen. First of all, that there is a fair investigation. Before dismissing, before even getting to the disciplinary hearing, there should be an investigation into what's happened, an exploration of the facts to decide whether it is appropriate to go ahead with a disciplinary hearing. That is why it's so important that the fair investigation comes first, because you're working on the basic principles of natural justice, that people are innocent until proven guilty.

So somebody's accused people of doing something and the first thing we have to do is decide whether there's any basis for the accusation. If there is, then the employee is invited to a disciplinary hearing. And it's really important that the employee knows the allegations before the meeting so that he or she can prepare for the meeting. The process, once the investigation has been carried out, is that the employer should write to the employee inviting them to the disciplinary hearing, telling them that they can be accompanied at the meeting, and telling them what the accusation is.

And if it's relevant, attaching to that letter evidence. So if it is that you've been doing something fraudulent and therefore we're inviting the employee to a disciplinary meeting to respond to the accusations of fraud, what is this fraud? And maybe let's say it's fraudulently claiming expenses. Here are the expenses claims. Here are the things that we think are fraudulent, highlighted. And this is the evidence that we're going to rely on in the dismissal hearing. Then the employee knows, the employee can look at it, they can reflect on what those expenses are, they can prepare to say, "But no, these expenses were all completely genuine. Look at this. Look at that. Look at this receipt. Look at that receipt".

But if the employee goes into a dismissal meeting where the emotions are already high because it's a horrible situation to be in, and then the employee's just handed a pile of papers and it's said, "These are all fraudulent expenses claims", the employee isn't going to have the chance to think it through, to reflect on what they are, to do their own investigation. So the employee must go into that meeting ready. And the employee can be accompanied at the meeting by a trade union representative or a colleague, and therefore the employee needs to have had the chance to brief their representative so the representative knows what's happened.

Then at the meeting itself the employee must have a chance to respond to the allegations, and if a disciplinary sanction is imposed, the employee must have the right to appeal. At the centre of the Acas Code are those three steps: invite the employee to a disciplinary meeting; hold the meeting; allow an appeal. That is why the employment tribunal is not very tolerant of employers not following the procedure, because actually it's fairly straightforward.

Now, potentially fair reasons for dismissal I've referred to once or twice. There are five of them, and they are set out in the Employment Rights Act 1996, and they are: conduct; capability; redundancy; a statutory ban; and some other substantial reason. I'm going to briefly say a few words about each of them, apart from redundancy. We quite often don't like saying that redundancy is a dismissal, because we tend when we're thinking of dismissal to think of employee doing something wrong for which they have blame and therefore that they've got to put right. And of course redundancy is a very different situation to that, it's when we're saying we don't need as many employees anymore. But technically and legally redundancy is a dismissal, and it is in the Employment Rights Act 1996, but it's handled very differently to everything that we're discussing today, and therefore we're not going to include it in today, that is a topic for another day.

So, conduct. Conduct is split into gross misconduct and misconduct. Gross misconduct are the really bad things, and I've put some examples there, it's theft, violence, vandalism. They're the things where it could be appropriate to summarily dismiss. Summarily dismiss means that the employee is dismissed without notice. Now, dismissed without notice, not dismissed without a fair procedure.

So you could be in the situation where you actually catch the employee stealing from you, so they're walking out the door with company material that they've got no right to have, it's in their hands. How much clearly can this be, they're stealing. They might even say, "I'm really sorry, I know I shouldn't have taken it, please forgive me", or whatever they say, you've still got to follow a fair procedure. If you said in that situation, "Right, you're stealing from us, you're fired", in true Alan Sugar style off The Apprentice, that would be an unfair dismissal. You have still got to investigate, you've still got to write to the employee and invite them to a meeting, you've still got to have the meeting, and you've still got to allow an appeal. There's still got to be a fair procedure. Sometimes that can be really difficult with gross misconduct, because the emotions are often quite high, and it's so easy to say something that shouldn't really be said.

Then we have misconduct. These are things that are still wrong, but they are not bad enough to warrant immediate dismissal, so we need to have disciplinary warnings before dismissal. Things like using bad language, wearing uniform wrongly. Of course all these things depend on their context. Using bad language may be just using bad language in conversation with colleagues on a building site. Probably isn't going to get any real response. But if I swore at a student in a lecture room, that would be misconduct. So again we've got to have regard to the circumstances and the situation. But with misconduct we would go through a series of disciplinary warnings. If the employee did not make the necessary improvements, then we could be at a situation where we are thinking of dismissal.

We then have capability. This is when the employee's skill, aptitude, ability, qualifications, are not of the required standard. It could be that the lack of capability is connected to ill health, so it could be that the employee is underperforming because their health restricts them. It could still be appropriate to dismiss, but in the situations of ill health we do have to remember that we mustn't discriminate on the grounds of disability. With capability it's going to be very rare that it would be appropriate to dismiss without first issuing disciplinary warnings.

We then have a statutory ban. These are the situations where if you continue to employ the individual you're breaking the law. For example, employing somebody as a driver if they've been banned from driving. Employing somebody to work in the UK when their right to work in the UK has expired. Employing somebody to work with children or vulnerable adults when they've been placed on the Sex Offenders Register. In these situations you're likely to need to suspend the employee as soon as the situation comes to light, because if the ban is in place then you cannot continue to employ them. So for example, if you have an employee and they come in and they're a driver for you and they say, "I've been to court this morning and I've just been banned for three months", you can't say, "Okay, well we'll have a disciplinary hearing to talk about that next week, in the meantime carry on with your job", because you're breaking the law by allowing them to carry on with their job. So it is likely that you are going to need to suspend in that situation.

Then we have some other substantial reason. These are not any other reason that doesn't fit with the others that you potentially want to create just so you can dismiss, they are reasons that are set out in case law. So it could be pressure from an external source to dismiss, so maybe a customer saying, "If you don't take action against that employee, we're going to take our business elsewhere". You do need to be really careful with that that you haven't got a customer who is suggesting to you actions which actually could be discriminatory.

It could be a reorganisation, that you've gone through a consultation process and you need to change something, maybe the place of work or the hours of work, and the employee isn't agreeing to it, and therefore you dismiss and offer reengagement on the new terms. It could be an error. There have been cases where base employers and employees have thought that an employee can no longer continue to work because of visa restrictions, and actually they were both wrong. But if both you and the employee were mistaken and it was a genuine error, then it could be still a fair dismissal.

Then we need to be very careful with this one, but potentially it could be a breakdown in the working relationship. But we do need to be careful there, because I'm sure if I asked you – and I'm not going to so please don't do it – to list the awkward employees in your organisation, I'm sure you wouldn't have a difficulty in thinking of certain names, and you're probably smiling riley to yourself as I say that. That doesn't mean we can just dismiss them because they're awkward. I'm talking here of really serious breakdowns in the employment relationship where there is nowhere else to go to remedy the situation.

So, there's our potentially fair dismissal, there's our potentially fair reasons for dismissal, and now it's time for me to ask you some questions and for me to shut up for a moment. So, I'm going to ask you a number of questions, and I'd like you to put your answer into 'chat'. I really would like you to do this please. Please don't worry that anybody's going to think, 'Oh, you didn't get the right answer', or anything like that. What's important is that we explore these issues. And I haven't picked easy questions, because why would I?

So, the first question is, can all employees claim unfair dismissal? So what do you think? Can all employees claim unfair dismissal? I'll just pause for a moment and then look at your answers pouring in. So we've got a no. No. No. So those of you that are saying no, Sarah's said you need two years' service, unless it's discrimination. Oh, we've got a number saying two years, two years. Those with two years plus service. Ah, now Eva said you need two years unless it's automatically unfair dismissal. And Adam has said the same. So, I think we have a pretty sort of similar sort of response. Let me unpack some of this.

First of all, only employees can claim unfair dismissal. So somebody who is self-employed or somebody who is a worker – and those of you that have been following any recent HR developments will have seen groups like the drivers of Uber declared workers – workers cannot claim unfair dismissal. So it's only employees. And to claim if you like ordinary unfair dismissal, yes you need to two years' service.

But there are a number of reasons that are automatically unfair where you do not need to two years' qualifying service. For example, if you dismiss somebody because they are pregnant. If you dismiss somebody because they're a trade union member. If you dismiss somebody because they've raised a health and safety concern. If you dismiss somebody because they have averted a statutory right. And by that we mean that they've asked to be treated in accordance with the law. A good example of this would be if somebody says, "Please will you pay me the national minimum wage?", and in response the employer dismisses them for asking. You may say, "Well that would never happen". I sat on a tribunal where exactly that happened. All of those sorts of things are automatically unfair dismissal, and there is no requirement to have a two year service limit.

There's just one area to I think confuse us sometimes. I do sometimes think law makers just think, 'How can we confuse people'. Anyway. If you are dismissed as a result of a transfer of undertaking, so this is when part or all of the business is sold to a new employer and the employees transfer, or the provision of a service is transferred from one employer to another. In that situation it's automatically unfair dismissal if you're dismissed for that reason. But you do need two years' service to bring a claim in that situation. But apart from that, all the other automatically unfair reasons you don't need the two years' service.

Somebody in there mentioned discrimination as well. A dismissal could be discriminatory. It could be that somebody argues that they've been dismissed, and the reason they've been dismissed was their religion – for the sake of argument. In that situation they would bring two separate claims: they would bring a claim of unfair dismissal; and a claim of discrimination. You can't have a discriminatory dismissal claim, they are two separate claims. So you would bring the discrimination claim and the unfair dismissal claim, you'd bring them on the same claim form to the employment tribunal, but they would be listed as separate claims. And if you didn't have two years' qualifying service, you would not be able to bring the unfair dismissal claim. But if your dismissal was discriminatory, you would be able to bring the discrimination claim because there is no qualifying service for that.

Okay, so that's question one. We've got six questions, just so you know. Here's question two. What is the remedy for unfair dismissal? So, what do we mean by remedy? What I mean is, that if an employee is successful in the employment tribunal, what do they get if they successfully claim unfair dismissal? Let me see what you say. Compensation. Reengagement or compensation. Reinstatement. Maximum year's pay. Compensation or reinstatement depending on what the employee wants. Reinstatement, offer of a similar job and compensation. Right for their old job back. Loss of earnings. One year's salary up to a maximum figure.

Right, okay. A lot of right answers there, but let's just piece them all together. There are three options of remedies in an unfair dismissal situation. The first is reinstatement, and what that is, is getting your job back. The second is reengagement, when you go back to the company but in another job. And the third is compensation. Legally the employment tribunal is actually required to first of all consider whether reinstatement or reengagement are potential options. In reality they're rare. If you look at the tribunal data of any year, you see that reinstatement/reengagement is a remedy in less than a fraction of a percentage of all successful claims.

And the reasons are quite simple really, that first of all the time it takes for a claim to come to the employment tribunal is lengthy. It depends on your tribunal, but it could be up to a year before the claim actually is heard, and in that time a lot of people have found another job. But also there's quite a practical point, that if you've just spent however long in the employment tribunal being rather rude about each other, it's not exactly going to lead to a positive working relationship. So reinstatement and reengagement are rare.

What most people who are successful in an unfair dismissal claim get, is compensation. The compensation is made up of two elements. The basic award, which is calculated in exactly the same way as a statutory redundancy pay, so there of course it's based on age and length of service. Then the compensatory award, which is calculated by looking at the loss of earnings, potential future loss of earnings, loss of benefits, cost in finding alternative employment, and it's a maximum of £86,444, or the employee's salary, whichever is lower. Therefore I'll just type in that figure there, because it's easier to actually put it in in writing. But for most people they earn less than £86,444 of course, and therefore for most people it's going to be their annual salary as the maximum.

So, let's look at question three. Which of the following is an automatically unfair reason for dismissal? I'm going to have to type them in here so that you know that which to choose from: conduct; exercising a statutory right; or a transfer of undertaking. Are any of those automatically unfair reasons for dismissal? Let's see what you say, which of those are automatically unfair? The second, so that's exercising a statutory right. Somebody else has said exercising a statutory right. Second, the statutory right. The second. Statutory right, b) and c). Statutory right. Exercising a statutory right and TUPE.

Yeah, that is exactly right. Conduct is not an automatically unfair reason for dismissal. Exercising a statutory right, or being dismissed due to a transfer of undertaking, are automatically unfair. The difference is that a transfer of undertaking still requires you to have two years' service to bring the claim. Whereas exercising a statutory right, you do not need any qualifying service.

Question four. How long does an employee have to bring a claim of unfair dismissal? So if they want to bring a claim of unfair dismissal, what's their deadline? Three months. Six months. One year. Three months after the dismissal. Three months extended if Acas is involved. Six months. Twelve weeks.

Right, okay. So we've got a little bit of a difference of opinion here. The rule is that it's three months from the date of dismissal. But Trevor is right to remind us of the extension. If an employee wants to bring a claim to the employment tribunal, they are required to engage with the Early Conciliation Service first. What this means is that they are required to contact the service, which is run by Acas, and to engage with it they have to give their name and contact details and the name and contact details of the employer. Acas will then contact the employee within two working days and explain the conciliation process to them, and ask them more about what has happened.

At this stage the employee can say, "Thank you very much for your explanation, but I do not want to engage any further with early conciliation", and that's absolutely fine. They then get given their early conciliation unique number, and they can go on and make a claim to the employment tribunal. Or the employee says, "Yeah, I would like to engage with conciliation", and then what happens is Acas contacts the employer, and the employer either says, "Yes, I would like to engage with conciliation", or, "No, I wouldn't". If the employer says yes they will, then the conciliation process starts.

Now, there's four weeks for this conciliation process. If it's successful in that time then the employee cannot proceed to the employment tribunal, and they sign an agreement called a COT3. If it's not successful however, then the time stops ticking at whatever stage it is and this three months restarts. So really it's three months from the date of dismissal, but any time given to early conciliation just puts that three months on hold. So imagine a clock ticking down to the end of this three months, engage with early conciliation, stop the clock.

Just to make it a little bit more confusing, if when the clock restarts there's less than one month on the clock, so this is when an employee's left it quite late in that three month cycle to actually engage with early conciliation, if there is less than one month left then it has to be added up. So you can never have less than one month after the clock restarts before making a claim to the employment tribunal. So the answer is, it's three months from the date of dismissal, plus the time taken for the Acas early conciliation.

Let's go to question five. Can an employee resign to avoid being dismissed? There are you are, you've got an employee, you've told them you're unhappy with them, you've told them that you're inviting them to a disciplinary hearing, and in your letter you've said to them, which you should do, that one of the possible outcomes of the meeting is that they will be dismissed, and the employee says to you, "I can see what's going to happen, I resign". Can they do that?

Yes, if with immediate effect and the business accepts the resignation. Yes, you can't stop them resigning. Depends on the case – oh yeah, that's a good one – for example, where there's a case involving vulnerable adults or children. That is a good one, yes. Anything else? Able to include it in a reference request.

Right, okay. Well, there's some very good points being made here. Yes, an employee can resign at any time. You cannot stop an employee resigning. If an employee said, "Well I can just see where this is going to end up, I resign", yeah you couldn't say, "Well you can't resign". You could potentially mention it in a reference request, but the difficulty is that in a reference you can't refer to something that the employee hasn't had a chance to respond to. You would have to be talking to the employee about what you were going to do in a reference, and it would be usual to reach some sort of agreement about this before the employment came to an end.

Helen raised the very good point that it does depend on the situation of whether it involves vulnerable adults or children. Yes. If an employee works with vulnerable adults or children and they were facing disciplinary action for a safeguarding reason and they said, "Right, I resign", you would still have to investigate that safeguarding reason, and if appropriate you would still have to refer the matter to the independent safeguarding authority. You couldn't say, "Well you've resigned and therefore we won't worry about it", that would still be an issue.

If you had an employee and say you had a very big organisation and you didn't want them at a later stage returning to the organisation, then you could explain to them that if they resign they won't have had the chance to clear their name, and therefore they will not be able to work for the organisation or related companies ever again. Usually when an employee says I resign, it's because they know what the outcome of the disciplinary hearing's going to be, because they they've done as accused, and therefore they want to I suppose spare themselves the nastiness of it all really. I don't mean that you act nastily, but it's not a pleasant process, is it, being dismissed. Well, I'm sure it's not. It's really thinking then has that solved the problem, or is there anything outstanding that needs to be addressed?

The last question. If an employee is dismissed and then appeals, when is the termination date if the appeal is unsuccessful? So they've been dismissed and then they appeal, the options are is the termination date the date of the dismissal or the date of the appeal? I think you all agree on this one, the original dismissal date.

Yeah, absolutely. It's the original dismissal date. If they appeal, then if the appeal is successful obviously they're reinstated, and any unpaid salary, which there will be, from the original date of dismissal to the date of the reinstatement, and then that salary has to be paid. But if the appeal is unsuccessful then that's it, and unfortunately they go and the original dismissal date stands.

Thank you for answering all those questions. I am just now going to say one or two things about how to avoid some of the common problems, and then I'll see if there's any questions before we draw to an end.

First of all, train line managers. It's very important that line managers understand what they are and aren't allowed to do, and this will be something that varies by organisation. In some organisations there are a very limited number of people that actually have the authority to dismiss. Some organisations it's actually quite wide. But it's important that managers are trained and understand what they can and they can't do. Also, they understand the importance of investigations.

Most line managers hopefully won't ever dismiss anyone, and on the whole line managers could go many years from first being told about how to dismiss and then having to do it. So it's useful trying to put together like a recording of this session, or some online guidance or something, so that when line managers actually end up in a situation where they might be considering dismissal, they've got something to turn to. But it's really important that line managers understand the importance of investigations, and understand the importance of not losing their temper. It's so easy to be angered by what has happened and to do an Alan Sugar and to say, "You're fired", and then it's happened and it can't not happen, and then it becomes very, very difficult to manage. So, train your line managers.

Check that the policies are up-to-date. It's worth getting out the Acas Code of Practice, Disciplinary and Grievance Procedures, and sitting with it alongside your own procedure and checking that the key points of the Acas Code are mirrored in your company procedure. A couple of areas that it is worth looking at is if there are examples of gross misconduct, that it clearly says that they are non-exhaustive. Quite simply employees do things that we would never dream up. If we spent all of the rest of this afternoon listing out all the possible things that could ever be gross misconduct, there'll be something an employee does that none of us think of. So saying very specifically that the following is a non-exhaustive list of what gross misconduct might be, is really important.

Another thing that is useful is there are those situations which are really borderline, should we dismiss, maybe not, but giving a first level disciplinary warning just doesn't seem appropriate given the seriousness of what's happened. So what do we do? Having the option to go to a final written warning for situations like that that are borderline and it's tricky to know what the right thing to do, is really, really useful. If you've got that in your procedure then you can definitely do that. So that's worth checking.

Investigations. I keep going on about investigations, and I don't apologise for it because it's really important to investigate. Now we are in civil law, so we are not in criminal law so we are not having to prove guilt beyond all reasonable doubt. We are saying on the balance of probability did the employee do as alleged? But we've still got to have some facts on which we reach those conclusions. So it's really important to have an investigation and to tell the employee the findings. It's really important that the employee has the opportunity to respond to the facts.

Keep records. Of course we're good HR people so we know this, but make sure that everything is in writing. A useful tip for disciplinary dismissal meetings is to have a note taker present who is literally just taking the notes. Get that note taker to write up their notes after the meeting, and then after that to give a copy of the written up notes to the employee and say, "Could you sign each page to say that you agree that this is a correct representation of what was said. And if you don't agree with anything, please let me know". Then when you get into an employment tribunal, if you ever do, you're not having an argument about what actually happened or what actually was said, you've got the records. And do write up witness statements. If you have to take witness statements, make sure that they are written up, and of course the employee does have the right to see them and the right to respond to them.

Now the representative, you have very limited rights here. The representative is a colleague or a trade union representative. You cannot say whether you like the representative or not. So you can't say, "Look, you've just chosen the real troublemaker" – you probably wouldn't say that, but you know that's the subtext to what you're saying – and therefore I'd like you to find a different representative". You also can't say, "I'm sorry, but that employee is really busy at the moment and I don't want them spending time on this". As long as the representative is an employee or a trade union representative, you have to allow it. A representative can address the hearing, they can put or sum up the employee's case. They can respond for the employee. They can confirm with the employee. But if you've got a question which you really want the employee to answer and not the representative, then you can insist on that.

Those of you that came along to the Disciplinary and Grievance webinar will know that if you're in the situation where you've got an employee who is disabled with a learning disability that might mean that they have an impaired understanding of what's happening, or a similar sort of disability, then you could say that they are allowed a carer as a representative, or somebody that understands their condition and can help communicate with them. And if you've got somebody who's aged under the age of 18 years, then allowing them a parent or carer present would be appropriate.

So, that brings me to the end of everything that I was going to say, and therefore the opportunity for me to ask if there's any questions? If there are any questions, if you'd like to pop them into 'chat' and I will answer them.

Oh, civil service case law. Hmmm, yeah, there are lots of cases that get brought. Can I think of anything specific? Yeah, suspending. In terms of civil service case law, obviously there are cases that are brought to civil service. Various ones are popping into my head, but I don't think they're necessarily particularly relevant to what we've been talking about today. Ed has asked about suspension and has listed three cases there. The most recent is the Agoreyo versus London Lambeth Council. These cases have been saying when it is appropriate to suspend? The answer is that it's appropriate to suspend when there's a reason to suspend. So it should not be a kneejerk reaction, so you should not have an automatic step in your process that says if we're thinking of dismissing somebody we will always suspend. You should look at it on a case-by-case basis and decide if it's appropriate.

In the Agoreyo case what had happened was that it was a teacher who was accused of restraining two rather difficult children inappropriately, such that she hurt them. That was the allegation. She was suspended whilst it was investigated, and she resigned and claimed constructive dismissal saying that suspending her was a breach of the implied term of mutual trust and confidence. What she was saying in essence was that by suspending me you're showing that you believe the children. And what the council was saying was well no, it's a safeguarding issue. If, if, if, if you have hurt the children then we've got to remove you from a situation where you could hurt them again, or hurt different children. The Court of Appeal ruled that suspending was not a breach of mutual trust and confidence here.

So, it is okay to suspend if there's a reason. So if emotions are particularly high. If you've got an employee who you're accusing of doing something with the computer systems and they could go and put viruses and bugs in the system because they've got the knowledge to do it. Those sorts of situations is it appropriate to suspend. But you've got to take it on a case-by-case basis.

Medically suspend. I would say with medical suspension you rely on the information that you get from occupational health or the employee's medical practitioner. If what occupational health or the medical practitioner are saying is that the employee is unwell and for whatever reason it's not appropriate for them to be at work, then medically suspend them. Because not doing so is going to cause you all sorts of problems if they subsequently are injured in some way at work, and you've allowed them to work when you've actually been advised that they shouldn't be. So, a couple of interesting questions there.

I think I've answered all the questions. That just remains for me to say thank you very much for coming along today. I hope you found the session useful. I hope in some weird way that you don't need the knowledge that I've given you today, because dismissing someone is never a pleasant experience. But thank you very much for coming along today. Have a great rest of the day.

Family friendly rights

Family friendly rights

Kathy Daniels

So welcome very much to the Lunch and Learn session where we’re going to look at family friendly rights. Let me start off with some introductions. So my name is Kathy Daniels. I'm the lead tutor for the Employment Law Programmes in the CIPD. And my background is in HR. So when I left university, an incredibly long period of time ago, I went to Land Rover as a graduate trainee in HR and then I moved to a large manufacturing company in the West Midlands called Avery, worked my way up and became head of HR. And Avery at the time had 2,500 employees.

Nowadays I am working at Aston University in Birmingham where I am associate professor in employment law, associate dean responsible for the post graduate programmes. And I also write and talk and consult about employment law. And my passion very much is applying the law. So I'm not a lawyer, I've never trained as a lawyer but I see the importance of employment law in protecting both the employer and the employee. And so I very much like talking to HR people, to line managers about what the law means for then and not seeing the law as something that is restrictive but seeing the law as something that is beneficial for both the employer and the employee.

And so what we’re going to do today is have a look at family situations and the legal protection that there is.

Today’s session

It’s a huge topic, indeed you may be aware that the CIPD run a day-long course on maternity and parental leave rights and I often run that for the CIPD. And so I'm very used to spending about seven hours talking about this topic and we’re going to cover it all in just one lunchtime. And I do promise you that we will finish by half past one because I do appreciate that a lot of you are indeed attending in your lunchtime. And what we’re going to do is look at the main issues, we’re going to look at all the rights that exist but we’re not going to cover them in the same depth that we would do on a full day course.

This session I will just mention, is part of our Lunch & Learn series, and this is a series of five webinars and for the sake of completeness the other four are: Avoiding Discrimination in Recruitment; Bullying and Harassment; Grievance and Disciplinaries; and Achieving Fair Dismissals. And what I'm going to do is I'm going to do an overview of the law. I'm then going to throw it over to you and I'm going to ask you some questions and ask you to put your responses in Chat. And I’ll explain a little bit about that in just a moment. And the purpose of the questions is just to pick up on one or two important things that maybe are just mainstream but they are things that HR people have to deal with reasonably often.

And then we’re going to end by thinking about problems that can arise and how to avoid and mitigate the risks of things going wrong.

Using WebEx – Chat

Now WebEx has a lot of functionality and you need a relatively minimal amount of knowledge of WebEx for today, but you do need some knowledge and things that you need to know, first of all are Chat. As you’re looking at your screen if you are based in front of the computer, I appreciate some of you have phoned in on the phone, but if you are looking at a screen on the right-hand side at the bottom you should see a box that says Chat. And there you can type in comments, questions, answers.

You'll see that there is the option to post a comment to somebody individually or to respond to everybody. Could I ask you please to put any responses to everyone and Keira indeed just has and said hello. Thank you Keira, hello. So if you put something to me privately others can't see it, of course anything you ask is likely to be of importance to absolutely everybody.

Participating in the session

If for any reason you can't see the chat box on the right-hand side of your screen if you just run your cursor over the slide that you can see at the moment that says, use in WebEx, a number of circles will come up at the bottom and there's two blue ones and the blue one to the right that has a little speech bubble in it is the enabling of Chat, so if you click on that it will open up your chat screen.

The other way that you can participate is by putting up your hand or by using emoticons, using the cross and the tick function. And again if you look at the right-hand side of your screen and this time you look at the names underneath that you've got a picture of a hand, you've got a cross, you've got emoticons, and if you click on the hand that is in effect like putting your hand up in a classroom and then I can open up your microphone for you.

I have muted all microphones as people arrive into the session and that's because you can get some really horrible interference. Once you've actually got a relatively small number of people on a webinar I assure you, and I don't know whether you've ever heard the screechy noise that you can get but if you haven’t it’s not a noise that you want to hear.

Maternity rights

So that's all you need to know about WebEx and it’s time for us to talk about family friendly rights. And we’re going to start off with the one that is probably most common, in fact I'm sure it’s the most common, and that's maternity leave. And so what are the rights of a woman who is pregnant and who is on maternity leave?

First of all it’s useful to know that we refer to the protected period. And the protected period is the time from when the woman says, I'm pregnant, to when the maternity leave ends. And during that protected period the woman must not suffer any detriment because she is pregnant or on maternity leave and she must not be discriminated against because she's pregnant or on maternity leave.

And it’s important just to look at those two issues. The Employment Rights Act 1996 protects the woman and says she mustn’t suffer a detriment. So she mustn’t suffer a detriment because she goes on leave because she's pregnant. But under the Equality Act 2010 there is also the protected characteristic of maternity/pregnancy. And if a woman is treated less favourably because she is pregnant or because she's on maternity leave or she suffers discrimination then she can also make a discrimination claim. And that's really important to be aware of and to make line managers aware of. Discrimination claims can be made from day one of employment and compensation for discrimination claims is unlimited. And therefore discriminating against a woman who is pregnant or on maternity leave can be a rather expensive process, as well as being wrong.

So a woman’s right is 52 weeks of maternity leave. And that is a right for all women, regardless of how long they have worked for the employer. And that 52 weeks is split into two separate components – ordinary maternity leave and additional maternity leave. And there's only one thing that is different between those two periods of leave and that's the right on return to work.

So if a woman returns from work after, or during, a period of ordinary maternity leave she has the right to return to the same job that she left. If a woman returns from a period of additional maternity leave, even if she's only just gone one week into the additional maternity leave period, then her right is to return to her old job or if that is not possible, to return to a job with the same status and the same terms and conditions of employment.

So apart from those issues regarding return to work rights the rest of the rights throughout maternity leave are the same.

When a woman first tells her employer that she is pregnant the employer should write to that woman within 28 days to confirm that the woman is going to take maternity leave and to confirm the date that the woman is going to return to work. And if the employer does not write to the employee within 28 days then the employer loses the right to chase up the woman if she doesn’t return to work on the expected date. There is no requirement at all for the woman during her maternity leave to make contact to confirm the date that she's returning. When she starts her maternity leave it’s known when she's due back, and that's when she appears unless she gives eight weeks’ notice that she wants to change her return date. So she can return early but she has to give eight weeks’ notice that she wants to do that.

Now every woman, as I say, has the right to 52 weeks of statutory maternity leave but not every woman has the right to receive maternity pay. The receive maternity pay first of all the woman has to be earning at least the lower earnings limit which is at the moment £118 per week, but also by the 15th week before the expected week of confinement she must have at least 26 weeks service.

So let’s just unpack that a little bit. First of all I just referred to the expected week of confinement. This is the date that the baby is due in medical opinion. So the woman, after around 20 weeks of pregnancy receives a form from the midwife or the doctor that's called a MAT B1 and that form confirms that the woman is pregnant and also gives the date that the baby is due. And that's what you as an employer work everything to. So in terms of has she got qualifying service for statutory maternity pay, when is she allowed to start her leave, is all calculated in accordance with the expected week of confinement.

And if the woman says, I don't agree with those dates, I think my doctor’s wrong, fascinating but it doesn’t change the fact that you have to work to the expected week of confinement on the MAT B1. Why is it called the expected week of confinement? Because in the old days women would be confined to their bed after giving birth and so it was referred to as the period of confinement. Now of course women get up and get on with life very, very quickly.

If the woman qualifies for statutory maternity pay then it’s six weeks at 90% of salary and then followed by 33 weeks at £148.58 per week. And for those of you who are good at maths you will have therefore worked out that the last 13 weeks of statutory maternity leave is unpaid.

Employers can give women more rights than that. So there are employers where there will be a period of time maybe at full salary. That's absolutely fine. What the employer can't do is pay less than statutory maternity pay.

A woman can start her maternity leave at any point after 11 weeks before the expected week of confinement. And if a woman is ill with a pregnancy-related illness in the four weeks before the expected week of confinement the employer can force her to start her maternity leave.

Now as well as the maternity leave there is also protection for the woman as soon as she has said I'm pregnant, and I've already referred to the protected period and protection against discrimination but a woman who is pregnant will have antenatal classes, antenatal appointments, and a woman is allowed to attend all her antenatal appointments that have been recommended by a medical practitioner and that is paid leave. As an employer you cannot refuse a woman the right to take an antenatal appointment. You can say to a woman if possible can you arrange it at the start of day or the end of the day, or at a time that is otherwise convenient to you, but if the woman is not able to do that then you can't say to the woman; well therefore you can't take the appointment.

And the law is reasonably clear about what antenatal protection is. It’s anything that is recommended by a medical practitioner. So obviously you've got the blood tests, the scans, the check-ups with the midwife. But if the midwife or the doctors say that relaxation classes, baby yoga or pregnancy yoga I think it’s called, relaxation I've said, parent craft classes, anything like that, would be beneficial to the woman, if it is recommended by a medical practitioner it counts as antenatal appointments.

So there's a bit of a whistle stop tour of maternity leave and if you've got any specific questions to maternity leave I'm very happy to take them now, stick them into Chat or at the end.

Adoption rights

Let’s move on and talk about adoption rights. So statutory adoption leave mirrors statutory maternity leave and the pay mirrors statutory maternity pay as well. I'm very sorry the second bullet point here as a typo on it, it should say that statutory adoption pay mirrors statutory maternity pay. So basically you've got the six weeks at 9/10th salary followed by the 33 weeks at £148.68 per week and the leave is 52 weeks split in this case into 26 weeks of ordinary adoption leave followed by 26 weeks of additional adoption leave.

Now the leave can only be taken by one of the partnership adopting, if it is a partnership. Of course individuals can adopt babies and children and if it was an individual that was doing the adopting then they could take adoption leave. If it’s a couple, whether it’s a heterosexual or a homosexual couple it really doesn’t matter, the couple chooses who is the primary adopter and it is the primary adopter who can take adoption leave. There is also the right to attend appointments in connection with the adoption and this could be appointments to meet the child that is potentially being placed for adoption or it could be to do with the paperwork or the process relating to adoption. The primary adopter and the primary adopter is the one that's going to actually take the statutory adoption leave, is entitled to take up to five paid appointments and the secondary adopter, so if it’s a couple it’s the one in the could not taking adoption leave, is allowed to take up to two unpaid appointments.

And the process of course has a much shorter build up. So a pregnancy last 40 weeks, with adoption a couple or an individual are approved for adoption and then they're matched with a child and the time from when they are approved as an adopter to whenever they're matched can vary considerably. It could be years, it could be days. But once they’re actually matched with a child what will happen is they’re issued a matching certificate and they can start adoption leave within seven days of that matching certificate. So you actually don't get a lot of notice from your employee that they want to take adoption leave because once that matching certificate has been issued everything happens very quickly.

So that's an overview of adoption leave and again I'm very happy to take any questions you might have.

Let’s move on to…ah we have a question, hold on. What about ladies that don't yet work for us, pregnant or on maternity leave when they are successful in a recruitment exercise? We’ve been advised that we have to ring-fence the role until after the protected period. Is our understanding correct and does this also apply to adoption? Yes.

So let’s just take maternity leave first. So a woman that applies for a job or a promotion does not have to disclose that she is pregnant. If she did disclose that she was pregnant you would just ignore it. So if she is applying for a job, she's applying for a promotion, and she's the best person you would have to offer her the job and if that meant then that she said, well actually I'm going on maternity leave next week, you would just treat her in the job on maternity leave. If there was a health and safety reason that she couldn’t do the job because she was pregnant then yes you would have to keep the role open for her if she has got the job.

Adoption is a little bit different. You can't treat somebody; they can't suffer a detriment because they're taking adoption leave. So if somebody applied for a job and maybe they are approved as an adopter and when they apply for the job they haven’t been matched with a child and they’re just waiting, and as I say it can take years, and then they accept the job and then they’re matched with a child then that individual would have the right to take statutory adoption leave but presumably they then would not have 26 weeks service by the 15th week before the date of the matching in the case of adoption and therefore they would not be entitled to statutory adoption pay.

On the right to return what would be the situation if the woman moved home and was no longer able to travel to the work location during maternity leave? If there are no similar roles in the office nearest to their new home what are our obligations?

So your obligation on the right to return is to first of all give the woman her job back if it’s possible and if it’s not to give a job, same status, same terms and conditions. But just as with any employee if I move away from Birmingham and I suddenly, I don't know I'm living in Exeter, my employer has no obligation to find me a job in Exeter. I've got a job in Birmingham, either travel to it or resign.

So if the woman can't do the job that she left because she has chosen to relocate you’re not obliged to find her a new job that suits her better. If, for the sake of argument she worked in Birmingham, like I do, and let’s say she did move away to Exeter and she said, right now I want a different job, your only obligation is to give her a job on the same terms and conditions, same status, which could be a job in Birmingham. So if there was a job available in Exeter great but otherwise she has chosen to move away and it’s her choice whether she commutes or not.

Paternity leave

So thank you for those questions. Paternity leave is either one or two weeks. So it can't be taken as individual days and you can't take one week, come back to work and then go and take another week. So it’s one block that is either one week in length or two weeks in length. And it must be taken within 56 days of the birth or the placement for adoption and it’s paid at £148.68 per week.

Fairly straightforward. The only thing just remember is that it applies to same sex relationships as well so if you have got a couple where you've got a same sex relationship and one of the couple is taking maternity or adoption leave the other can take paternity leave. And it doesn’t actually have to be taken by the father of the child. It’s the father of the child or the person that is intending to adopt the child, or the person who is going to have responsibility for the upbringing of the child. So it doesn’t actually have to be the father.

Shared parental leave

Now shared parental leave, this has been in place now for four years. It was heralded as giving partners much more flexibility than they previously had, it’s not been taken up as well as maybe it could have been. Why? Some say it’s because on the whole men don't want to take maternity/adoption leave, share it with their partner. Some say because the rules are unnecessarily complicated. And it is true that the rules are unnecessarily complicated when you get into the detail. But the broad principles are not that difficult.

So you've got an employee who’s got a partner. The employee is either taking statutory maternity or statutory adoption leave and chooses to terminate that leave and to share the remainder with their partner and that is quite simply how it works. There is a total of 52 weeks leave for the partnership, so it’s not 52 weeks each. And that is minus any maternity/adoption leave taken.

Also for the two weeks after a woman has given birth she is not allowed to work. And this is called the compulsory maternity leave period. It forms part of the ordinary maternity leave, so it’s part of the 52 weeks. But just in those two weeks after the biological event of giving birth the woman cannot work. And that two weeks can't be flexed. So it can't be shared. And in the same way whoever is taking adoption leave has to take at least two weeks after the placement. So in total you can share a maximum of 50 weeks.

And there are two ways of sharing it. And these are continuous or discontinuous. So let’s say for example you’ve got a woman taking maternity leave and she has taken 30 of her 52 weeks leave, so she's got 22 left. She then converts it to shared parental leave and her partner takes 11 weeks of shared parental leave and then she takes 11 weeks of shared parental leave. That's allowed because 30 plus 11, plus 11 adds up to 52, so that's okay. And it’s also allowed because it’s continuous leave. An employer cannot refuse a request to take a period of continuous shared parental leave. So it’s one taking some leave, followed by the next taking some leave.

But we’ve got these 22 weeks and what the woman says is, right the way we’re going to take these as shared parental leave is I'm going to take two weeks, my partner’s going to take two weeks. I'm going to take two weeks; my partner’s going to take two weeks. I'm going to take two weeks; my partner’s going to take two weeks. I'm going to take two weeks, my partner’s going to take two weeks – you get the drift – until we’ve used up all 22 weeks. That would be called discontinuous leave. In the same way if the partners said they wanted to take the leave at the same time. That would be discontinuous leave. And the employer can refuse a request to take discontinuous leave but if the employer refuses that request then they have to allow the leave to be taken as continuous leave instead.

And the payment is exactly the same as maternity pay and adoption pay, because maternity and adoption rate is actually the same, so it’s six weeks at 9/10ths of salary followed by the 33 weeks at £148.68 a week. And it’s whichever partner gets to it first. So if we take my example as the woman on maternity leave who’s taken 30 weeks of maternity leave then she will have taken six weeks at 9/10ths of her salary, followed by 24 weeks at £148.68 and so when we get into the shared parental leave bit there's only three weeks left of paid leave and if her partner takes the leave first her partner will get those three weeks, if she takes the leave first she will get those three weeks first.

So that's a little bit of a whistle stop tour of shared parental leave but hopefully it gives you the idea. Somebody who’s on maternity or adoption leave has to give eight weeks’ notice that they want to end their maternity or adoption leave and take shared parental leave instead.

Parental leave

We also have parental leave and you could say when they invented shared parental leave why didn’t somebody think, oh right what we’ll do is we’ll call it something totally different? Well I think that was just so that we all got confused. But anyway parental leave is nothing to do with shared parental leave. It’s unpaid leave to care for a child. And it’s 18 weeks per child and it has to be taken before the child turns 18 years. And the maximum that can be taken is four weeks per year, although organisations can be flexible on that and to take parental leave you have to have a qualified period of one year.

On the whole parental leave is not particularly popular because it’s unpaid. But it has to be taken to care for the child. So it can't be grandma and grandpa have offered to look after the children and we’ll go on a Caribbean cruise. It can't be that. But it could be that my child has got chickenpox, the nursery won't allow the child to go to nursery while he's got chickenpox and therefore I take some unpaid leave to care for my child.

Time off for dependents

Then we have time off for dependents. So this a day one right, so by that I mean that there is no qualifying service required to take this. And it’s time off to address an emergency. So something like somebody has become ill, somebody’s been assaulted, indeed somebody’s died. And it’s a reasonable time off to address the emergency relating to the dependent. And the dependent is a spouse, a child, a parent, someone living in the same household, or someone dependent on the employee. And that dependent on the employee does then allow us to open it up to a much broader range of relatives, so it could be a grandparent or someone else who’s dependent on the employee.

I'm just going to pause because I have a question. With the addition of adoption leave and shared parental a great move towards more modern views of the family, are there also rights for those undertaking other things such as surrogacy and fertility treatment or IVF?

Surrogacy. So in the surrogacy situation somebody is having a baby for someone else. So the birth mother, the woman who's actually having the baby is entitled to maternity leave. There is nothing that says that you have to have the child with you to take maternity leave. So if you were giving the child up for adoption you would still be entitled to your full maternity leave.

The commissioning mother, so this is the mother who's going to be the mother and receive the surrogate child is entitled to take adoption leave if the commissioning mother is going to apply for a parental order under the Human Embryology and Fertilisation Act 2008. So if there's going to be a formal legal process of this baby becoming the baby of the commissioning mother or the commissioning parent then you can take adoption leave.

IVF there is no special leave for any fertility treatment such as IVF but there have been cases where employees have successfully argued that suffering a detriment for taking time off for IVF is sex discrimination. Now it’s a bit of a difficult argument because men can have fertility treatment just as much as women but fertility treatment for women tends to be more invasive, tends to be longer, tends to involve more disruption to them. For example them having to take hormone injections and things like that which could cause them physical difficulties or emotional difficulties. So penalising somebody that's having IVF treatment might be sex discrimination but there is no specific leave for fertility treatment.

Flexible working

The final leave before I throw to questions over to you is requesting flexible working. Now you would be very right to say this isn't really a family friendly right because anybody who has got at least 26 weeks service who has not made a similar request in the last 12 months, can request flexible working, it doesn’t have to relate to any caring responsibilities. But most people who put in a flexible working request are doing it because of care responsibilities. So even though it’s not strictly speaking a family right I think it is right to address it here because of how it’s most commonly used.

The employer can refuse a request for flexible working; they must consider it within three months and then give a decision.

So over to you. I'm going to ask you for questions would you like to put your answers into Chat.

Question one: Can time off due to a miscarriage be counted when assessing whether a disciplinary warning can be used for absence?

So what I'm thinking here is the trigger type systems where a disciplinary warning is pretty much automatically given if you have a certain number of days off due to sickness in a period of time. When you’re counting up how many days off your employee has had if they’ve had days off due to a miscarriage can you include them or not?

So we’ve got a couple of noes, three noes, four, five. You’re all completely right. Yes you cannot count the time off for miscarriage because the only reason that the woman has had a miscarriage is because she was pregnant and therefore it would be pregnancy/maternity discrimination.

And somebody, Susan there, has said isn’t it full entitlement to statutory maternity leave if over 24 weeks pregnant? That’s one of my questions, that's my question four, so I will address that when I get to question 4 but thanks very much for raising that.

Question two: Is there any legal right to time off for fertility treatment?

Well I've just answered this question. Yes you’re all right that's what I've just said.

If the treatment was making the woman unwell, and I'm no expert on fertility treatment at all but I have known friends that have undergone it and I definitely had a friend who had IVF who became quite unwell with the hormone treatment that she had to have. So I remember she had to inject hormones at certain times of the month. You could take leave if it was making you unwell. But attending fertility treatment appointments themselves if you weren’t sick then sick leave wouldn’t really be appropriate.

Question three: If a woman resigns whilst on maternity leave before receiving all her SMP does she lose the remaining amount?

So this is when she's on maternity leave does she lose it. No, no, one or two noes. I'm not getting many responses here, you're not very sure. Right okay well it depends why she's resigned. If she is on maternity leave and she's decided she doesn’t want to return to work, she's going to be a stay-at-home mum, then if she resigned she would receive all her SMP. But as Joanne has just said if she resigns to go and work for a new employer THEN HER SMP stops. So it depends why she's resigned.

What you can’t do is ask a woman to repay her SMP. So if she said, well I'm going to return to work, and you’re expecting her to return to work and then she doesn’t return to work you can’t say, that’s really irritating, and have the SMP back.

What you can do if you have a company scheme, so where you’re paying above the statutory minimum you can say that that amount is contingent on her coming back to work for three months, six months, however long you want it to be and if she doesn’t come back then she has to repay that additional money but you could not require her to repay a certain percentage.

Question four: Now I'm going to answer the question that I sort of answered - If a woman’s baby is stillborn what leave does she get?

And stillborn means that the baby has been born and has been dead at birth after 24 weeks of pregnancy or more. So what leave does she get? Keira says maternity leave, full leave, full rights, entitlement to full maternity leave. Yes absolutely. As I said earlier there no requirement that a woman has a baby with her when she's on maternity leave – she could be a surrogate mother, she could have given the child up for adoption, the baby could have been stillborn, the baby tragically could have died soon after birth, it doesn’t matter. Once the woman has gone past the 24 weeks of pregnancy she is entitled to take her full maternity leave.

She could at this point say, well I'm going to change my initial plans, and if she had said that she wanted to take the full leave then it probably is not particularly unlikely that she might say, I don’t want to take a full year off after all. She does have to give a week’s notice that she wants to come back earlier but it in a stillborn situation I'm sure we all would just do what we could to accommodate the needs.

Question five: Do employees on maternity leave get bonuses?

Now here’s a bit of a complicated one. What do you think? They do now yes, yes. If the bonus is paid to everyone. It depends on the basis of the bonus. Yes Dawn you’re definitely getting warm there. It depends on the company scheme it must be demonstrably fair. There are some interesting responses there.

Going back to the terms and conditions that apply during maternity leave. It depends on the company and it would be pro rata. Right okay. So whilst a woman is on maternity leave she remains an employee and all her terms and conditions remain in place, apart from those related to remuneration. So she doesn’t get paid her salary. So she's still an employee, so her holiday still accrues. If she's got non-financial benefits, so maybe she gets a company car, she keeps it. And we need to look at the definition of remuneration to determine whether she gets a bonus. And pay, remuneration, is defined as the money that relates to the work that the employee has done and therefore when Dawn says it depends on the pay basis of the bonus you’re right. If the bonus relates to the performance, so say it’s profit share or it’s a straightforward bonus that all employees get based on targets that the company has met, then the employee would get it because it’s not money that relates to the work that the employee has done.

But if it’s something like performance related pay, that directly links to the work that the woman has done then she wouldn’t get it when she's not there. So if say you’ve got performance related pay and let’s say for the sake of argument you pay it every six months and you pay it in arrears and at this particular point say 1st August PRP, performance related pay, is due and the woman has been on maternity leave for the last three months then you would pro rata it. So what you would be doing is saying, right we’re paying PRP for the last six months that all employees have worked, in the last six months this woman has worked 50% of that time and therefore she would get 50% of the PRP that's due to her.

Question six: If a woman has postnatal depression at the end of her maternity leave, can her maternity leave be extended?

No. not beyond 52 weeks, yes you’re right. So if a woman has postnatal depression at the end of her maternity leave, if she has elected to take the full 52 weeks then she has to come back, or as Adam has just said, she would have to move onto sick leave. If she initially said that she didn’t want to take the full 52 weeks she could give eight weeks’ notice that she wanted to change her date of return. But if the company pays sick leave, so you get paid sick leave from the company, it’s probably going to be financially better for the woman to move onto sick leave. What she cannot do is receive sick pay and maternity pay at the same time.

So if it’s sick leave is this counted as pregnancy related? It would not be part of the protected period. So protected period, the period while the woman is protected from less favourable treatment due to pregnancy or maternity ends when the maternity leave ends. So if her maternity leave ends and she then goes onto sick leave she is outside of the protected period even though the illness was pregnancy triggered.

You would have to be a little bit careful in how you treated her because I was going to say only women get postnatal depression, but there is evidence that suggests men might get it too but I think women are more likely to get postnatal depression we can probably say that. So we need to be a little bit careful about how we deal with the woman but her protected period has ended. Yeah you’re right it is interesting because if she hadn’t been pregnant she wouldn’t have got postnatal depression. But I guess this is the point at which the protection has to end really.

So there are my questions. Now I'm going to just have a bit of a conversation about how to avoid some of the risks and I'm very happy to take any questions at the end.

Train line managers

I think sometimes line managers aren’t particularly well trained in this area because there's so much to know. I often say to my students when I teach them about family leave I have a book on my shelf that is purely about maternity and family leave and it runs to about 450 pages. And no line manager is going to want to know that. But they don’t need to. What they need to know is what leave exists and what they can and cannot refuse. They need to know the main headline issues and they need to know that they then refer to HR or Payroll as appropriate when the question gets that bit more detailed.

And also line managers need to be reminded at times that the pregnant woman does need to be treated in a bit of a different way from a women that isn't pregnant. There is a need to think about risk. There is a need to be aware of all that is changing for her. So line managers do need training. They need training in the broad parameters of what they need to know and they need training to know that there's an awful lot more detail that they’re not going to be told and they need to go and ask as and when they need to know.

Review policies

It’s also worth having a look at policies, do they cover all the different types of leave and are they up to date. To make sure that they cover same sex partners, I think new policies get written nowadays. It’s something that people do think about but if you’ve got policies that have been knocking around for a long time maybe they don’t cover same sex partners: maybe the wording could be a bit more inclusive and at worst the wording might be discriminatory. So it is just worth having a look at policies.

Review risk assessments

Think about risk assessment. There is a requirement when a woman tells her employer that she is pregnant to think about what risks there are in the environment. And there is a requirement to carry out a risk assessment if there are potential risks that could harm the woman or the unborn child.

Now that in itself is rather interesting because how do you know there's a risk if you haven’t carried out a risk assessment? And I really think it’s best to err on the side of caution and to carry out a risk assessment once a woman tells you that she is pregnant. And if the outcome of that risk assessment is that there is some process or operation or whatever in the organisation that could potentially be damaging to the woman or the unborn child. The first thought that you could go through is can it be removed? If it can’t be removed can it be reduced such that the risk is no longer an issue. And if it can’t then the woman has to be moved to a different job and if there is no different job that she could be moved to that is safe then she would have to be suspended on maternity grounds on full pay and full terms and conditions.

And the risk assessment doesn’t end once the woman is back at work once the woman has gone on maternity leave because once she's back at work if she is breast feeding there is a requirement again to carry out a risk assessment.

The employer’s obligations if she is breast feeding are to provide somewhere that is private and clean where she can express milk and where she can rest. There isn’t an obligation to provide facilities to store milk, although you might want to do that.

Review disciplinary procedures

Also it’s worth reviewing disciplinary procedures. As I mentioned earlier some employers do have the trigger system for their absence procedure where all employees receive a disciplinary warning when they’ve had a period of absence and it’s important to make sure that any absence due to maternity, pregnancy, miscarriage, anything like that, is not included when calculating absence.

And in the same way if you are in a redundancy situation and attendance is one of the criteria that is being considered then a woman should not be penalised because she’s been pregnant, on maternity leave or has miscarried.

And employee who requires or agrees to flexible working should not be penalised in any way.

Review any enhanced rights

And do review any enhanced rights. And it’s an interesting area because we’ve had a ruling in the last two weeks about the comparison between enhanced pay for women taking maternity leave and enhanced pay for those taking shared parental leave.

So this is in the case of Ali versus Capita Customer Management and Hextall versus The Chief of Leicestershire Police. In both cases the employee was a man who had taken a period of shared parental leave and had been paid at the statutory minimum but in the two separate organisations women who took maternity leave got an enhanced period of statutory maternity pay. And so what the men were arguing was that it was discriminatory, discrimination against men if women got enhanced maternity pay but those taking shared parental leave did not get enhanced shared parental pay. And it has now been ruled that it is not discriminatory it is not either direct or indirect discrimination and the reason being, in rather quaint words, the court has said that maternity leave is for the purposes of recovering from the biological event of giving birth as well as the caring for the child, whereas shared parental leave is solely to care for the child. And because the two periods of leave are for two different reasons there is no requirement to pay them the same amount.

Now we could have an argument about that if we wanted but we’re not going to because that's the ruling of the courts.

So that brings me to the point at which I ask you if there are any questions. We have still got five minutes.

Is there a statutory timeframe in which Alabaster should be paid? So what Alabaster says is that if there is a pay increase after the woman has gone on maternity leave you have to go back and calculate that pay increase. And the timeframe you have to do this is you have to ensure the woman is not penalised in any way, so you go back to whenever that pay increase was agreed or implemented and that's when you go back to.

If someone is already on maternity leave and gets pregnant again and then has a miscarriage after 24 weeks her maternity leave could be extended. It would not be extended she would start a new period of maternity leave. So it is quite possible to have back-to-back maternity leaves. So if she gets pregnant whilst on maternity leave she could start her second period of maternity leave before the one she is taking has ended, if that makes sense, then she does go straight from one period of maternity leave to the next period of maternity leave. So it wouldn’t actually be extended it would be one maternity leave would end and the next would start.

Going back to Alabaster and for those of you who don’t know Alabaster, Alabaster is the case that says that we have to apply retrospective pay increases. Is there a timeframe for the actual pay-out? Well the woman shouldn’t be penalised compared to anyone else. So it’s when everybody else is getting the pay-out that is the timeframe.

Are there any other questions? No, well it pretty much has brought us to the end of the session. Thank you ever so much for your contribution and involvement today and some really great questions. This is a subject where there's huge amounts of detail, ACAS website, the HR forum which is run by the CIPD, the CIPD website, gov.uk. They’re all reliable sources. There's a lot of rubbish out there on the internet but if you stick to CIPD, ACAS and gov.uk then you’ll find lots of useful information when you need detail or when you’ve forgotten something and you can be assured that it’s right.

So I hope the sun is shining wherever you are and I hope you get to see some of it before the day is out and have a great rest of the day. Thank you.

Avoiding discrimination in recruitment

Avoiding discrimination in recruitment

Kathy Daniels

Right so welcome to this session where we’re going to be talking about avoiding discrimination in recruitment. I'm going to start off with just a few introductions and then I'm going to tell you a very little bit about WebEx. I'm just going to tell you what you need to know to relate to today’s session and then we’ll get going. I'm going to tell you a bit about discrimination and then I'm going to ask you some questions and that's a very relaxed way of just looking at a few issues and exploring them in more detail so there's no prizes for right or wrong, it just is a way of just engaging you. And then at the end I'm going to say a few things about how to, indeed, avoid discrimination in recruitment. And then I will open it up to questions at the end. But if you have any questions as I'm going please do interrupt and ask them, that's absolutely fine.

It is Lunch and Learn and there are some lovely pictures of apples for those of you that can see the screen. I do realise therefore that a lot of you are attending in your lunch break and therefore I will be very precise about making sure that I don't go over 1:30 at all so that you can get back to work for the afternoon.

So let’s start off with some introductions. My name is Kathy Daniels. I'm the lead tutor for the Employment Law Programmes for the CIPD and my background is working in HR. So when I left university, an awful long time ago now, I went to Land Rover as a graduate trainee in HR. I worked there for a while and then I moved to a company called Avery, a manufacturing company that makes weighing machines in the West Midlands. And I worked my way up the various ranks and became head of HR there. And when I left it had 2,500 employees. And one of the things that really interested me most about working in HR was indeed the law and what is really interesting to me is the application of the law. So I'm not a lawyer, I've never trained as a lawyer but what I am passionate about is as HR, people and line managers understanding what the law means for us and what it means that we can and we can't do and what protection we can and we can't give to the employee and the employer.

Now I'm just going to interrupt myself at this point because I have got a message from Natalie that she can't hear me. I'm presuming that everybody else can hear me because I've only got one message. Could other people just stick into chat, I haven’t even told you how to…you can hear me. Right okay. So everybody else is hearing me so Natalie if you just go to the audio on the top menu bar and it will allow you to check your connection there. So just click on audio and turn your volume up as Katie has just kindly advised.

Using WebEx – Chat

So now we’ve done some ways of using WebEx let me just tell you one or two things about today’s session and how to use WebEx. So today’s session is part of our Lunch and Learn session. We have five different webinars in the Lunch and Learn series and just for completeness the other four are Family friendly rights; Bullying and harassment; Grievance and disciplinary; and Achieving fair dismissals.

The things that we’re going to talk about today are the key legal concepts relating to discrimination. My standard lecture on employment law, because I don't think I said actually the main thing I do now is I'm Associate Professor in Aston University in Birmingham and I lecture in employment law and my standard discrimination lecture goes on for six hours, not six continuous hours I hasten to add, it’s split up over a number of days. And we’re doing this in an hour so we are of course skimming the surface but we are going to look at the Equality Act, protecting characteristics, and primarily we’re going to look at direct and indirect discrimination because they are the main ways that discrimination occurs in the recruitment process. And as I've said we will end by looking at how to avoid and mitigate risks.

So just one or two brief things about using WebEx, all I'm doing is tell you what it would be useful for today. First of all we’ve got Chat. Now many of you have already found Chat because you all typed in that you could hear me, Chat should be on the bottom right hand side of your screen as you’re looking at the screen. If you don't have it there if you just go to the slides in the main part of the screen and just run your cursor around there eight little circles will appear, two of them are blue and the second of the blue ones, so it’s circle number 6 as I'm looking at it, has a little speech bubble in it. If you click on that blue circle with the speech bubble Chat will open up and then you'll have it there. And if you do type anything in there please could you type it to everyone rather than directly to me because whatever question you have I'm sure it will be useful for everybody to hear the answer.

Participating in the session

Also you've got your name on the system and at the bottom of that you should have a series of emoticons and also some little pictures. So you've got a picture of a hand, if you click on the hand it’s the same as putting your hand up in the classroom. I have closed all microphones as people enter the session. The reason for doing that is that the interference that you get once you've got about three or four people in the session can be absolutely horrible, sort of screechy noise; I assure you we don't want that happening. But if you put your hand up I can open your microphone and you can speak. You can also use emoticons; you can click on the tick or click on the cross as you need.

Equality Act 2010

Okay so that's all our introductions. So let’s talk about the law relating to discrimination. And the first thing to say is that there is one piece of law and it’s the Equality Act 2010. And it covers all aspects of discrimination. And you may have heard of Acts such as the Sex Discrimination Act 1975; the Race Relations Act 1976; Disability Discrimination Act 1995, and various other pieces of legislation. What the Equality Act did was replace nine major pieces of discrimination legislation and over 100 pieces of more minor legislation relating to discrimination. Basically by the time we got to 2010 the law relating to discrimination had become a mess. There were different definitions of indirect and direct discrimination, different protected characteristics. It really was getting very confusing. So to make it all straightforward we have the one piece of law that has brought all the definitions into line.

There are a couple of things that I’d just like to remind us about the act. First of all the penalty for discrimination. It is unlimited compensation. Now this doesn’t mean any employment tribunals just pick a figure, there is a very structured way of deciding what compensation is paid but it is unlimited. And every so often we have a headline-grabbing case where somebody is awarded a six or a seven figure sum in compensation. This usually happens with high earners and most of the really big pay-outs have been to high earners in the city. But it’s useful I find to say to line managers from time to time when they are saying, ‘Oh stop going on about discrimination, don't worry about it.’ It’s useful just to remind them of the potential impact on the organisation.

The other thing to say about the Equality Act 2010 is it’s not a piece of employment legislation specifically; it covers all areas of life. So you may have been to the theatre or to the cinema and you may have seen a sign or something about accessibility and you may have seen in that sign a reference to the Equality Act 2010. Yes the reason that the cinema or the theatre has made sure that the building is accessible to everyone is because of the Equality Act 2010. So it is wide-ranging but all we are going to do today is to think about the issues relating to employment and specifically to recruitment.

Protected characteristics

Now I’ve use the term ‘protected characteristic’ more than once, what does that mean? Well what it means is that there are only nine grounds on which somebody can claim discrimination. And they are the nine protected characteristics in front of you at the moment and I'm just going to read them out because those of you who have connected by phone probably aren’t able to look at a screen as well. So the nine protected characteristics are age; disability; marital status or civil partnership; maternity or pregnancy; race, religion or belief; sex; sexual orientation and transgender status. And if somebody is being treated less favourably for a reason that doesn’t fall in that list then it’s wrong but it’s not a discrimination claim that they can bring under the Equality Act 2010.

So for example, maybe it’s a bit of an odd example but it works well, let’s presume that somebody applies for a job and when they apply for a job in the interview process, in, say the informal chat they say that they support Manchester United Football Club, and the recruiting manager is a really passionate Manchester City fan and the recruiting manager thinks to himself, ‘I don't want to recruit somebody that supports Manchester United,’ and on that grounds rejects the individual. That's wrong. It’s wrong that somebody does or doesn’t get a job based on what football team they support. And you may be thinking, oh goodness can't she think of a better example? Well I actually know that this has happened, so I'm thinking of a real example. But if that individual was going to say, ‘Well I will take a discrimination claim because of what has happened,’ what grounds are they going to bring it under? If you look at those nine the simple answer is they can't bring a claim of discrimination. So it has to fit under one of those headings. So I quite often when I'm lecturing my students say to them, ‘So what do you think’s not covered there? What would you add in?’ In fact let me ask you is there anything that you think should be in that list or anything that you just want to check whether it is covered by one of those headings? If there is just put it into Chat, or any ideas of what you think might be missing.

Nobody got any ideas? Just pop them into Chat, there's no such thing as a bad idea, so any ideas that you have. Social mobility. That's an interesting one, yes so exploring that a little bit further anything to do with class is not covered. Accent. That's another one, I don't know whether that directly links to social mobility but that's what you've made me think of Gemma. But we do know from surveys that have been carried out that there are some accents that employers take a dislike to in the recruitment process. That's not covered. Carers? No they’re not covered there. They could be under associative disability. So if you are treated less favourably because of the protected characteristic of somebody you associate with you can claim associative discrimination. So that could be disability. Adoption is not covered. You’re quite right. The political preference, political view, a couple of you have said that. Political membership, so membership of a political party is specifically excluded from the definition of religion and beliefs but if, for example, you've had a passionate belief in the importance of a socially democratic society that potentially could be covered under a belief.

Physical appearance and mental health. If mental health is such that it’s a disability then it would be included under disability. If somebody has a facial disfigurement it’s included under disability. But if somebody is just ugly, or really attractive at the other end of the spectrum, that is not covered at all. Nationality is covered under the definition of race. So race is defined as national origin, ethnic origin and colour. So that is covered. Working patterns and home workers, no they’re not covered.

So you can see as we start to build up this view of what might and might not be covered that protected characteristics cover a good range of things but not everything.


Now in the time that we’ve got today I don't have time to look at everything in a lot of detail but there are a couple of characteristics that I want to say a little bit more about with specific reference to discrimination and recruitment. And the first is age. And I think we’ve moved away from the days where we used to see adverts that the person will be successful in this job will be age 21 to 30, or 51 to 60. I think on the whole we know that we don't do that. But do be careful of putting in length of service.

If you say, ‘To do this job you've got to have at least five years’ service,’ then you’re basically saying that you can't be aged under 21 years because people have to have stayed in education to 16 or nowadays it’s 18. So length of service is always going to be linked to age because younger people can never have service as long as older people. Now you can put length of service in the recruitments for a job if you can justify it. So if, for example, you were recruiting for a brain surgeon, which I appreciate you might not be, but it’s a good example, and you were saying you've got to have had five years’ post qualification experience because you can't just let somebody loose on doing brain surgery who doesn’t know what they’re doing, absolutely fine. But if you were recruiting somebody to work on the tills in the supermarket and you said, five years’ retail experience, not fine because you’re not going to be able to show that you couldn’t do that job if you've had less than five years’ experience. So we just need to be careful there.

And we also need to be careful of graduate recruitment. Absolutely nothing wrong with graduate recruitment but remember that I'm a graduate as well, so if you’re recruiting for a graduate I can apply and most graduates are in their early 20s and therefore we need to be careful again that we’re not actually indirectly specifying an age.

There are some limited situations in which you can enforce an upper age and these are basically when you can show that by the end of the training the individual would basically be ready to retire. Now the difficulty here is we don't have a retirement age in the UK, the mandatory retirement age of 65 was removed many years ago. So if Fred does not have a retirement plan that's going to be a very difficult argument to put forward.

Now disability is a big issue in itself. If somebody is disabled then – oh there's no sound, the sound has gone – it’s back. Can I repeat about DRA, I'm not sure what DRA means? Fred. Right let’s go back to this, default retirement age, oh sorry I thought you’d retired at that. Right okay I was misunderstanding. Right okay so the limited situations you can enforce an upper age. So if we got Fred and he is applying for a job and the argument is that by the time he's completed his training he will be retiring then you could say you won't give him the job, but there is no retirement age in the UK, apart from a limited number of jobs where employers can justify having your retirement age. And unless it’s one of those jobs how do you know what Fred’s going to retire? So therefore you can't say that there needs to be a point at which you say, ‘Well I'm not recruiting anybody of a certain age.’ So on the whole keep age out of your recruitment decisions.


Now disability. If an individual is disabled, as defined in the Equality Act 2010, the obligation on the employer is to make reasonable adjustments. And the obligation is to make reasonable adjustments in the recruitment process as well as in the job that the individual might be doing. Now a disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Sometimes it’s very, very clear that somebody has a disability but sometimes it’s far from clear. And HR people on the whole are not medically qualified and therefore if you’re not sure if somebody is disabled, as defined in the Equality Act 2010, you’re most likely going to have to refer them to Occupational Health and ask the question of a medical practitioner. If the individual is disabled then the sort of adjustments that you might be making in the recruitment process are adjustments so that any disadvantage that comes from being disabled is overcome.

So for example if you take the case of Government Legal Services versus Brooks 2017, here we have an individual who was applying for a job and had Asperger’s Syndrome. And one part of the assessment process carrying out a multi choice assessment. And what the individual said was because of their Asperger’s they found the rather clinical approach of a multi choice assessment to be very difficult and so could they write out their answers longhand, so rather than choose A, B, C, explain their reasoning? And the employer said, no you can't because it’s marked by a machine and the machine only understands A, B, C, D, E, or whatever it was. And so the individual went ahead with the multi choice test, didn’t meet the level required to move into the next station of the process, was only one mark off, but didn’t meet the standard and therefore was rejected. And that individual successfully brought a claim under Disability Discrimination. A reasonable adjustment would have been to let her write out her answers longhand.

But let’s remember that we are talking about reasonable adjustments, we’re not doing whatever the employee asks or the individual asks. And this is emphasised in the case of Cordell versus the Foreign and Commonwealth Office 2011. Cordell was profoundly deaf and she already worked at the FCO and she applied for a promotion. She was successful but the promotion would have meant her working overseas and to do that she said that she would need a lip reader/interpreter and the cost of providing that was going to be over £1m over the three years that she would be on the placement, because there would be the requirement to provide the individual, provide accommodation to the individual, flights etc. etc. Posting anybody overseas is expensive. So they said they wouldn’t do that which meant she couldn’t take up the promotion. And she argued that this was disability discrimination but she was unsuccessful. That level of cost was not reasonable. So there is a requirement to make adjustments but only to make reasonable adjustments.

Direct discrimination

Now I said I was only going to look at a couple of the projected characteristics, that's because not that the other seven are less important but because we do have a time limit on us. But what I do want to do is explain what direct and indirect discrimination are. And direct discrimination is probably the easier of the two to understand. It’s quite true simply treating somebody less favourably because of a protected characteristic that they have. So in the recruitment process it’s for example, deciding not to recruit somebody because they’re a woman, or because they’re British, or because they’re disabled. All of those are examples of direct discrimination.

There are also two forms of direct discrimination, one that I've briefly alluded to already, one is associative discrimination, so this is treating somebody less favourably because of the protected characteristic of somebody that they associate with. So, for example, a carer, treating them less favourably because they associate with somebody who’s disabled. Or it’s perceptive discrimination. And this could be deciding not to invite somebody for interview because it’s perceived that they are of a particular race or a particular gender from their name. So it could be, for example, that somebody puts on their application that their name is Leslie Smith and the recruiter says, ‘Oh I don't want a woman in the job,’ and rejects them. But Leslie of course, is a name that can be given to a man or a woman. It is spelt differently for the two but maybe our recruiting manager didn’t realise that. And actually they’ve just rejected a man, even though the reason they rejected him was because they thought he was a woman. That would still be direct discrimination because it’s a perception of the protected characteristic and they’ve been treated less favourably because of that perception.

Indirect discrimination

Now direct discrimination is reasonably straightforward. On the whole employers know that they can't do that. It’s indirect that becomes a little bit more complicated. And indirect is when you apply the sort of requirement a provision criterion or practice to everyone. It is more difficult for a group with a particular protected characteristic to apply. It’s to the detriment of the individual. And it’s not a proportionate means of achieving a legitimate aim.

Well there's a load of gobbledegook. Let’s try and unpick it by looking at a case. And the case I'm going to look at is Azmi versus Kirklees Metropolitan Council 2007. And in this case a Muslim lady, Ms Azmi, went for a job as a teaching assistant, and this was in a school for children with behavioural and communication difficulties. When she went for the interview she wore a hijab, which is a veil that just covers the hair but the face is left visible. And she got the job and when she turned up on her first day of employment she was wearing a burka and the burka is a veil that covers the face and whole body. And the school said, ‘No you can't wear that because it’s difficult for the children if they can't see your face. Communication is words but it’s also body language and facial expression and actually these children have got some communication difficulties anyway and taking away the whole facial expression is taking away some of the cues that we all rely on in communication.’ And she said, ‘Well I've got to wear the burka because I'm going to be working with a man and if you don't allow me the job then you’re discriminating against me.’

Let’s have a look are they applying a provision, criterion or practice to all? Yep. The school is saying that all teaching assistants have got to have their face visible. Is it more difficult for a group of particular protected characteristic to comply? Yep. It’s more difficult for Muslim women to comply because they are the only religious group, to my knowledge, that actually have a veil that covers the face. Is it to the detriment of the individual? Yes, Azmi is being told she can't have the job. Is it a proportionate means of achieving a legitimate aim? Can it be justified? And in this case what the court said was, actually it’s not indirect discrimination because it is a proportionate means of achieving a legitimate aim. It is easier for the children to understand the communication if they can see the face of the person who’s talking to them and so actually what the employer has done here is justifiable. So hopefully what you can see here is the way that we define and explain indirect discrimination.

Now I've done a lot of talking let me open up some questions to you. And what I'm going to do is a question’s going to appear on the screen and for those of you that aren’t looking at the screen I will also read it out and then what I would like you to do is to post your answers into Chat.

Question one: What are the potential problems of asking applicants to complete a handwritten cover letter?

So here, of course we are thinking about discrimination, do you think that saying you've got to have a handwritten cover letter could potentially be discriminatory and if so what are the sort of issues?

You might say there are no problems, that's absolutely fine but what do you think? Dyslexia? Yes dyslexia.

Yeah the younger generation. I like that yeah.

So we’ll see if anything else appears whilst I'm talking. Disabilities, potential issues with sight as well. Physical disability. Bad handwriting. Yes.

English not the first language. Yeah.

Could give away the age. Mm that's an interesting one. it could do. Disability.

Yeah I think you've got the write things there I think the three headings that could potentially be an issue are disability, race, age is an interesting one, it’s not one that I believe is immediately thought of.

First of all disability, it could be that somebody has a disability that means that they cannot write. It could be that somebody is dyslexic. Now of course not everybody with dyslexia is going to be disabled within the Equality Act 2010. For them to be disabled it’s got to be a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. So if somebody that has got mild dyslexia it might not be substantial and it might not stop them doing normal day-to-day activities because they’ve learnt to overcome it and they can write and they can read. But severe dyslexia definitely could be a disability. And somebody that has an issue with their hands as well might not be able to write.

So yeah it could indeed be a disability issue.

English not being the first language. Yes. Again it would depend really on whether….there are people that have got English as their second language who can write very fluently but it could be an issue.

Age, I think that's an interesting one. I'm not 100% convinced that it would be possible to argue age discrimination yet it’s certainly true that young people are less likely to handwrite something because they’ve been brought up on phones and computers and tablets. I think that would be a very interesting one. But it definitely could be a disability issue and it could be a race issue.

But if the job requires having neat handwriting and it is an essential requirement of the job and there is no really legitimate way you can get round that then you could insist on it.

What sort of job? I suppose if you were going to be somebody that was doing calligraphy and doing beautiful writing on certificates or something like that, then you could say it was an essential requirement.

Question two: Now here’s an interesting question, what can you ask about medical issues prior to offering employment?

So those of you who are as old as me and I'm not telling you how old I am so you'll just have to guess but you may remember the days when if you applied for a job you would get a lengthy questionnaire covering every medical issue known to man and you would have to go through and tick whether you’d got it and you wouldn’t have a clue with most of them because you’d never heard of them. You can do that anymore, what can you ask?

I've got a few nothings, a couple saying, or three of you now saying that you could ask about information that you need to determine if there are reasonable adjustments. Yeah.

Any assistance required to attend the interview. Yeah also reasonable adjustments.

Affect the inherent ability to do the job. Yes.

So let me answer the question, oh you must be able to ask something, ie police officers. Yes so having a reason to ask a question.

What you cannot do is ask general medical questions before offering employment but you can ask about medical issues for the following reasons: firstly to determine if reasonable adjustments are needed in the recruitment process. And a number of you said that.

To see if the applicant can carry out an essential part of the job. So say for example you were recruiting a scaffolder, is there any reason that you can't work at heights would be a perfectly reasonable question to ask.

You could ask if having a disability is a requirement of having a job. And the ACAS guidance notes suggest that you might want somebody working in supporting mental health services has had mental health issues themselves. I'm not sure that you always do but that could be a reason.

If you want to monitor disability and diversity. But of course you would then be separating out those questions from your actual selection process.

To take positive action for disabled people as well. So you could, for example, say that you would guarantee an interview for anybody who is disabled. You couldn’t say you will definitely give the job to somebody that is disabled but you could say that you will interview. 

So the third question: What do you ask a female applicant who is visibly pregnant?

So can you ask a female applicant questions like when is the baby due? Or how long leave she will want? What can you ask a woman who comes for an interview who is visibly pregnant?

Nothing. Well that sums it up very nicely. And we have another nothing. Lots of nothings.

Health and safety questions, with a question mark. Yeah well basically the first thing is be very careful of ‘visibly pregnant’. Is a woman visibly pregnant or has she put on a bit of weight? So be very, very careful. And I say that because I do know somebody who was asked in interview when the baby was due and they weren’t pregnant. So that's an awful situation.

And pretty much you can't ask anything. You definitely can't ask when the baby is due or how much leave they want to take off because what you are then suggesting is that the pregnancy is one of the factors you’re taking into consideration when making a recruitment decision that clearly you can't do.

If you were advertising for a 12 month fixed term contract, as Christine has suggested you wouldn’t be able to ask, are you going to be able to be able to do the full 12 months? Obviously if they were pregnant and they were visibly pregnant, so that suggests some time into the pregnancy they are not going to be able to do the full 12 months. But you wouldn’t be able to turn them down for the reason that they were pregnant so you wouldn’t be asking that question in any way.

You could ask if there is any reason that they couldn’t do aspects of a job but in terms of the health and safety assessment and things like that you would have to be doing that after you’d offered the job.

Basically you can't ask anything about a pregnancy in an interview.

Question four: Can you tell applicants that they will not be able to wear any religious or political symbol in the workplace?

I've got a number of no’s. Anybody going to put yes? Oh we’ve got yes. So we’ve got a no and a yes.

Health and safety risk, unless it is relevant to the role.

You can have a company rule that says there are no religious or political symbols to be worn in the workplace. Somebody would not be able to claim religious discrimination then because they would not be able to show that there is one groups who is being adversely affected by the rule because if you said no religious symbols then Sikhs can't wear turbans, Muslims can't wear hijabs etc. etc.

But you've got to be a little bit careful with it because if you do say no religious or political symbols then you are excluding a chunk of the population from working in that organisation because you are excluding anybody that wears a turban, anybody that wears a hijab etc. etc.

So you would need to be having some justification of it but it would be quite difficult for somebody to bring a discrimination claim because they wouldn’t be able to show that they are being treated less favourably compared to people of other religions.

Question five: What are the potential problems, or are there any potential problems with using psychometric assessment in the workplace?

So this is when you’re using things like aptitude assessment or personality assessment. So for aptitude like verbal reasoning, non-verbal reasoning, numerical reasoning, are there any potential problems with using this?

Yes some disabilities.

Technology. Yep.

Disability or race. Yeah.

Different groups tend to do better, race and disability.

Yes you’re absolutely right that there would be a need to make reasonable adjustments and of course the Government Legal Services versus Brooks case I referenced earlier, the woman with Asperger’s who struggled with multi choice questions, that was a psychometric assessment and it was found to be discriminatory on the groups of disability. So yes there are potential disability discrimination problems.

Race, yeah there could be. There has been research that has shown that, particularly the verbal reasoning is easier if you’re a native speaker and a lot of the big psychometric assessment providers have now got psychometric assessments in a range of different languages to overcome that.

There could potentially be an age issue, although I think that's probably a little bit difficult to argue. Your main issues are going to be disability and race.

Question six: Can you ask for applicants to have experience working in a similar environment to your own?

For example could you say, we want you to work in construction, whoever’s successful in this job has got to have experiences working in the construction industry? Can you do that?

So, so far I've got a yes and a no.

So on the whole you’re saying yes. Yeah I'm with Jack there depending if it’s justifiable. Yeah. You need to be careful that we’re not exacerbating discrimination. So take the construction industry if we go on a building site today we will find a male dominated environment. We may well, if we go on a building site today, find that there are no women working there. We will definitely find a majority of men. So if we are recruiting people to work on a construction site and we say you've got to have experience of working on a construction site, we are exacerbating the problem of there being a lack of women working in construction because you haven’t got experience and now you can't work there anyway.

So we need to be careful that we’re not exacerbating problems that may have arisen over time due to stereotyping. But we could say that you've got to have experience working with similar skills or an environment that is similar rather than the same. So instead of saying you’ve got to have experience of working in the construction industry you might say experience working outdoors, or experience working in all temperatures or whatever it is. And really the question here would be to go back to well why is it that we want somebody that's got experience of working in a construction site, what is it about working on that construction site that is so important and then focus on that in our requirements rather than focusing on the specific environment.

Right so thank you very much for all your answers, have answered the questions that we had, how do you avoid the risks?

Train interviewers

Well first of all you need to train your interviewers. Lots of people think they’re really good at interviewing and actually they’re really bad. And why are they bad? Well for a range of reasons. There are interviewers that just talk all the time. One of my children went for a job not long ago, which they did get, and came out of the interview and I said, ‘How did it go?’ and my son said, ‘Well I hardly spoke. The interviewer just spoke about himself all the time.’ So we do have some pretty poor interviewers out there. But there's bad technique, like talking about yourself all the time, and also there's making discriminatory statements, asking discriminatory questions and making discriminatory decisions.

So our interviewers do need training. It’s not true that anybody can interview well, that all it is is a friendly chat. There's a skill to identifying the right questions to ask, to framing them correctly and to making sure that in the interview what we’re doing is investigating what’s essential to the job.

It’s also important that interviewers are trained to think one day your decision could be challenged because there is no requirement to have any length of service to bring a discrimination claim. And indeed somebody who’s never worked for the organisation but has merely applied for a job, could bring a discrimination claim. So writing things in notes that are derogatory, discriminatory, or just downright rude, shouldn’t happen. And quite often people who are taking notes in interviews are just thinking well they’re notes for me – no they're not. Just think that potentially one day you might be in an employment tribunal with these being read out.

There was a case going back a few years now of a secretary who got a job and she found the interview notes relating to her interview in her manager’s desk – she was doing nothing wrong, she was looking for some papers quite legitimately and came across these notes. And in the summary of the interview with her, her manager as he then was, had written ‘Red dress, big boobs.’ And she successfully claimed sexual harassment as a result of that absolute crass thing to write. So make sure people are aware that one day their notes might be seen by others.

Job description

And it’s really important before we even get to meet people to look at applications to have thought clinically and objectively about what it is that we’re recruiting. So we should have a job description that clearly sets out what the job involves, what is essential and then thinking about well could this lead to discrimination in some way? As we’ve already noted thinking about whether there are adjustments that could be made to overcome anything that is potentially discriminatory, if it’s disability, but also is that essential to the job?

But we also shouldn’t be afraid of saying, ‘Yeah it is essential to the job,’ so if it’s essential that you have to have fluent spoken English, it’s essential and there is nothing wrong with saying that. There is nothing wrong with saying that if somebody is working on a call centre and they're communicating with the public they’ve got to be able to communicate clearly – nothing wrong with saying that.

If somebody can't do that because of a disability then we’ve got to see if there's a reasonable adjustment but we might still conclude it’s an essential part of the job and there is no adjustment. But we’ve got to challenge ourselves when we write job descriptions to say is that actually something that must be done or it would be quite nice to do.

Person specification

And a person specification is probably even more important and here what we should be saying is what is essential about the person and what is desirable and are there some essential attributes that are more difficult for people with particular protected characteristics? So are they really essential?

So back to my scaffolder if we say it’s essential that you can work at heights, that's going to exclude people with epilepsy from doing the job because it wouldn’t be safe for them to work at heights. But if you can't work at heights you can't put up scaffolding, it is essential. So we can assure ourselves that it’s essential. But back to my example of saying you need five years’ retail experience to work on the tills of a supermarket – no you don't. You do not need five years’ experience. So it’s important when we look at our essential and desirable attributes that we’re not just putting things down that are nice to have. Let’s think about the words essential and desirable.


It’s also important to think about advertisements. Where do we place the advertisement? Is there a place that the advertisement is being placed is it somewhere that a broad representation of potential applicants will see it? Or are we advertising in a location or in a media that people of a certain race or people of a certain age, or people of a certain group are more likely to see it than others? And so we should challenge ourselves about where we are advertising.

Now we don't need to get silly about language, if you want a mature attitude say a mature attitude is important. That doesn’t mean an old person; I know some very mature young people and some very immature old people. But if you say a lively, energetic, are you suggesting that you want a young person? Maybe not but don't use language that is unnecessary, that is suggesting someone of a particular type.

And also look at the pictures in the advertisement, if you use pictures. It’s very interesting research done, one of my university students did her major project looking at pictures that employers use in recruitment and whether they suggest a particular age. And she showed that yeah there is some evidence that this does happen. So think about pictures, are they really portraying what you want? Is it necessary?


And use monitoring information. This can be really useful. So it is useful to get monitoring information but make sure that you use it appropriately. Don't just gather data that tells you the diversity of the people that have applied, actually use the information to think again about what you could do different in future to get a broader range of people applying.

Now that's all that I wanted to say, we’ve still got five minutes so are there any questions before I draw it to a close? I’ll just pause for a moment because with the chat function I can't see that anybody’s typing, I only see when something has appears so I’ll just pause for a moment to see if anything does appear. No it doesn’t seem that it is. Okay well thank you. Ah somebody is typing, I was going to say thank you to everyone but somebody is typing so let’s just see what does appear. I'm just pausing. I think some microphones have just opened up. Let me just close that one. Right I'm just waiting to see if something’s appearing because Martin has put this into typing. A pause.

I think if you selected someone over another person at interview who both had essential but one had desirable would that be discrimination?

No so if you’ve got somebody who had all the essential, well it’s unlikely they're going to have all, but the essential and desirable characteristics and somebody else had the essential, that is not discrimination, remember discrimination has to be making a decision related to a protected characteristic. So if what you’re saying is when I've assessed overall your characteristics, your essential and your desirable I actually think this is the better person, as long as that doesn’t relate in any way to a protected characteristic then that's absolutely fine.

Okay so thank you all for your attention today. I hope that you found it useful and have a lovely rest of the day. Oh no, no there's one more just come in. If someone had the reasonable adjustment which states they cannot travel due to mental health issues where do they stand if applying for a job that has essential criteria which says travel is part of the job?

So then you’re into reasonable adjustments. So if, due to their mental health problems they’re disabled, as defined in the Equality Act 2010, your obligation is to see if there are any reasonable adjustments that can be made to overcome the disadvantage that their disability is bringing. It may be that they don't have to travel, that they could do things remotely, using Skype and other things like that. But if at the end of the day you say no there is nothing that can be done you've got to travel, there are no reasonable adjustments, then you could go ahead and reject the application but you would have to show that you've been through the process of deliberating reasonable adjustments and had eliminated all the options.

So thank you all very much and have a lovely rest of the day. Bye, bye.

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