Employment Law Update- April 2022

Wednesday 27th April 2022

A Failure to Follow the Correct Redundancy Procedure Could be Costly…

P&O Ferries have attracted a lot of negative press in the media lately following the sacking of approximately 800 employees without notice, replacing them with cheaper agency workers. The employees were simply informed over a video recording that they were all being dismissed with immediate effect to protect the financial survival of the company. This has raised a number of potential legal issues for the company.

An employer seeking to make 20 or more staff redundant in a single organisation within a 90-day period is firstly required to consult with employees and their representatives. Where there are 100 or more proposed redundancies, this should begin no fewer than 45 days before the first dismissal. Employers must also notify the UK government department responsible for business, industrial strategy, science, innovation, energy and climate change (also known as BEIS).

The purpose of the consultations with employees and their representatives is to try to reach an agreement and attempt to avoid redundancies, reduce the number of employees at risk and mitigate the effect of the dismissal on the affected employees.

As some of P&O’s ships appear to have been registered abroad, it is possible that the usual collective consultation obligations did not apply, at least in respect of some employees.  Nevertheless, it is worth highlighting the high costs payable if employers get it wrong.  An employer’s failure to consult may result in a protective award of up to 90 days’ pay for each affected employee on top of any unfair dismissal compensation. There is also potential criminal liability for failure to notify BEIS.

Other employers should learn from P&O Ferries’ mistakes in handling redundancies. Where a company does require a genuine reduction in the number of its employees, it should ensure they follow the appropriate procedures. Not only will this reduce the risk of potential claims, thus avoiding expensive awards from the tribunal, but it also avoids the irreparable reputational damage.

Comment

If you are anticipating potential redundancies and would like advice on the safest way to do this, mitigating any risk, please do not hesitate to get in touch with one of our team who would be more than happy to help. It’s a small step which could save both financial and reputational damage.

Flexibility and Flexible Working Requests…

The post-pandemic world has seen a lot of changes to our workplaces, including the increase in flexible working. Flexible working can provide a wide range of benefits for both employers and employees, however, many employees with caring responsibilities still feel they don’t receive adequate support from their employer.

It is important that employers are aware of their legal obligations when dealing with all flexible working requests, particularly from those with protected characteristics.  Employees do not have the right to work flexibly but do have the right to have their requests considered.  The reason for a refusal of any flexible working request should fall within one of the statutory reasons for refusal.

A failure by the employer to adhere to such obligations can result in costly tribunal claims, such as complaints of discrimination. Such claims have been on the rise in the past year due to such a dramatic increase in flexible working requests being made, particularly when leaving lockdown and returning to ‘normality’.

Comment

Adopting a more flexible workplace, can create a more successful and diverse workforce and also help with employee retention and staff morale, whilst avoiding costly tribunal claims. It doesn’t however work for all roles and businesses so there is a difficult balance to be struck for employers in deciding on the level of flexibility to offer.  As many employees will have successfully worked from home during the pandemic, we anticipate that it could be increasingly difficult for employers to justify refusing requests to work from home, particularly on a part-time basis.

Should you require any further advice on flexible working and what your obligations are, or the preparation of hybrid working/working from home policies, please do get in touch with a member of the team.

Supporting Mental Health in the Workplace

Mental health problems are common in the workplace and can contribute to high levels of absence.

As mental health awareness month approaches, it is a good time to remind employers of how they can support employees with mental health issues in the workplace.

Multiple lockdowns over the last 2 years saw a huge rise in the number of diagnoses of mental health conditions, such as depression and anxiety, or even simply just a general feeling of sadness from being lonely. It is an ever-growing issue and something which employers should be aware of.

Employers have a duty of care which means they must do all they reasonably can to support their employees’ health, safety and wellbeing. Longer-term mental health issues could also trigger the definition of a disability.

Once the disability definition is triggered, employers are required to make reasonable adjustments and a failure to do so could lead to complaints of discrimination, although it is of course good practice to consider reasonable adjustments and support to any employee experiencing an issue with their mental health. It can often not be clear cut whether an employee’s mental health issue meets the definition of a disability.

Examples of how you could provide support include:

  • Making occupational health referrals
  • Communicating without judgement
  • Creating a supportive environment with open dialogue
  • Putting in place a wellness action plan
  • Making reasonable adjustments to absence, performance, disciplinary procedures
  • Adjusting working hours/breaks/duties
  • Giving additional time off
  • Phased returns to work
  • Introducing mental health first-aiders
  • Providing access to external support and counselling

Comment

We recently delivered some training to one of our clients on supporting mental health issues in the workplace. The feedback we received was great. If you would like further information on any of the above or are interested in being provided with similar training, please contact a member of the team.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.