Category Archives: Duty of care

I’m feeling stressed!!!

As a result of a recent case relating to workplace stress or depression being seen as a disability, it may be useful to look at the law relating to disability. The law says that if an employee has a disability and is thereby put at a disadvantage compared with non-disabled employees, then the employer has a duty to take such steps as are reasonable to avoid the disadvantage. A disability is legally defined as a physical or mental medical impairment that has a substantial effect on the ability to carry out normal day-to-day activities  and is “long-term”, meaning it has lasted or is likely to last more than 12 months.

Normally these aspects of disability go together so if an impairment lasts more than 12 months it’s probably a medical condition and probably has a substantial effect on that person’s day-to-day activities.  But that’s not always the case. Recently the EAT accepted that clinical depression is a medical condition and it also accepted that it will often be difficult to distinguish clearly between stress and depression. However, the EAT also accepts that these two conditions are different; stress is a reaction to adverse life events so if those events disappear, the stress should resolve itself.

So what should employers do? Well, in practice most employers will be unable to distinguish between stress and depression, but they have a duty of care to take reasonable measures to reduce or avoid stress in the workplace. If as an employer, you can reduce stress as much as possible it will inevitably lead to a nicer place to work and probably also to greater productivity. There are limits of course, work can be stressful. But often there are things managers can do, like improving workflow systems in order to reduce the need for stressful deadlines. Change how you allocate work, not every job is time critical or vitally important so assess each job or task and allocate accordingly; this will significantly reduce pressure on your employees as they will be able to pace themselves.

Remember employee stress and clinical depression can be used in unfair dismissal cases, so it’s always best to minimise the likelihood that these reasons can be used against you, and as always if you need help or advice, give us a call.

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Filed under Duty of care, Employment Law, HR Issues, Mediation, Sick pay, Unfair Dismissal

Some Other Substantial Reason?

This is an interesting legal topic that rarely gets a mention. Most employers, employees and HR professionals are well aware of the main grounds for which an employee can be dismissed; gross misconduct, continuing misconduct after a final written warning, etc. But there is also a “catch all” legitimate ground for dismissal for “some other substantial reason”, or SOSR for short.

In order to dismiss an employee fairly an employer has to have a fair reason and follow a fair procedure, but if for example, an employer is struggling with a “problem employee” whose behaviour is affecting the morale of other staff, the employer cannot fairly dismiss the employee because of his conduct, as the issue is not the conduct itself, but how their conduct affects other members of  staff. Nor do the other fair reasons for dismissal; capability, redundancy or breach of statutory restriction apply in this situation.

Instead SOSR can sometimes be used in the following situations where the employee:

  • Causes significant business disruption because of personality clashes with others
  • Refuses to accept any changes to their employment contract
  • Is likely to divulge confidential business information
  • Can no longer be trusted
  • Causes important customers or other third parties to call for their dismissal.

Despite the above, it is important however, to follow the correct disciplinary procedure at all times regardless of the situation; the employee must have adequate warning, a chance to appeal and any concerns or issues the employee might have that caused his behaviour should be addressed well before any attitudes harden on both sides and dismissal is contemplated.

It is also important to ensure you follow the ACAS code of practice to the letter, because even if the employee contributes towards his dismissal as a result of his behaviour, employers who fail to follow the ACAS code of practice risk incurring financial penalties as well as the dismissal being deemed unfair because the correct procedures were not followed.

As always, if you need any help or advice in this or any other legal matter, why not give is a call?

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Filed under Arbitration, Dispute resolution, Duty of care, Employment Law, HR Issues, Mediation, UK Law, Unfair Dismissal

Oh, The Crosses We Have To Bear…

With the state of world affairs today, religious fanaticism, radicalisation and hatred is a topic that can spill over into the workplace, especially into the controversial area of religious symbolism. In fact two recent cases adjudged by the European Court of Justice may have muddied the legal waters somewhat.

The ruling that gained most publicity states that banning all religious, political or philosophical symbols in the workplace isn’t direct discrimination, although specifically banning symbols from just one religion would be. This was further complicated as it also stated that, “banning religious symbols would be indirect discrimination if it had a disproportionate effect on a particular religion or belief”.

Ultimately the European Court of Justice left national courts to determine if discrimination had or had not occurred in individual cases. Unfortunately, this ruling clashed with a previous ruling by the European Court of Human Rights which ruled in 2013 that, “manifesting a religious belief is a fundamental right, partly because a healthy democratic society must tolerate pluralism. The court accepted that an employer’s wish to project a certain corporate image was also legitimate, but in that particular case, the court held that the individual’s religious freedom had been unlawfully restricted.”

Religious symbolism therefore remains a legal minefield; especially should a customer wish not to be served by a member of a particular religious affiliation. Indirect discrimination is not necessarily unlawful if it can be justified in respect of a legitimate aim, such as an employer’s desire to project an image of neutrality toward its customers, which is a legitimate aim.

Ultimately make sure you apply the same rule to all religious or philosophical viewpoints and make sure it can be justified by having previously implemented a policy of religious neutrality, before you consider banning all religious symbols in your workplace.  Even then, it is probably safer just to not ban religious symbols. If you need any advice on this or any other legal matter, give us a call.

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Filed under Dispute resolution, Duty of care, Employment Law, EU Law, HR Issues, UK Law

Starting up, have you thought about…?

So the New Year is a month old and you’ve decided to start up on your own, good for you! Whatever you decide you want to do, though there are certain things you should never ignore or overlook if you want to succeed.

Have a Business Plan; this may seem obvious but you’d be surprised just how many new star ups don’t have one written down. Write down both your short term and long term objectives and how you plan to achieve them and while you’re at it don’t forget to include an exit strategy in case it all goes pear shaped. A business plan will help you set your priorities and milestones in terms of financing, customer base, suppliers, staffing, premises, etc. Remember any potential investors or banks will expect to see your plan before they commit and if you can show that you have already fulfilled some of your milestones; you are more likely to achieve a favourable result.

Get the right constitutional documents in place. Articles of Association set out all the formalities regarding the composition of a board of directors and how directors and shareholders can make decisions. Investors are likely to insist upon certain protections with new start ups, so having the right articles in place could avoid disputes which could jeopardise any third party investment.

It’s been said in other blogs here, but you cannot emphasise the importance of creating standardised written terms and conditions for both your customers and your suppliers. Apart from giving you some protection if suppliers fail to deliver or a customer fails to pay, having a legally enforceable agreement in place will mean that you can be more comfortable in finalising contracts quickly and without protracted negotiations. Protect your brand by registering your trading name as a trade mark. Don’t forget to register a domain name for all potential web addresses you’d like to be associated with your business. Intellectual Property is also important; ensure that any ideas or processes people come up with are assigned to the company, and carefully review any contract dealing with IP prior to signing, and that includes your employees. Having written contracts not only satisfies certain statutory requirements but also helps protect confidential information and trade secrets and intellectual property rights.

Have strong financial reporting, controls and procedures in place; appoint an accountant to prepare your company’s accounts so that you, and the rest of your board, understand them. This can be vital when you pitch for investment. Make Companies House filings updating the company registers, keep minutes of board meetings and ensure that your bookkeeping is accurate and up to date.

Think about insurance, whatever the nature of your business you need to have the necessary insurance in place. If you employ any staff, you will need employee liability insurance, if customers visit your premises you will need public liability insurance and if your business provides an advisory service, professional indemnity insurance should be considered.

Don’t forget tax once you start trading to ensure that you properly account for PAYE and NICs. Instruct an accountant or tax advisor to register you for VAT if applicable and to advise you on the most tax efficient means of paying yourself and staying on the right side of HMRC!

These are just a few of the many topics we can advise you on so if you’ve decided to take the plunge, why not give us a call.

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Filed under Company Law, Duty of care, Employment Law

New Year, New Job?

In the new year you may be contemplating taking on new staff or getting a new job; in either case it may be useful to revisit what employers should do in preventing discrimination and harassment claims and what new employees need to look out for in a new job.

UK law recognises nine types of unlawful discrimination:

  1. Age
  2. Disability
  3. Gender reassignment
  4. Marriage (including same sex marriage) and civil partnership
  5. Pregnancy and maternity
  6. Race (including colour, nationality and ethnic or national origins)
  7. Religion or belief (including a lack of religion or belief)
  8. Sex
  9. Sexual orientation.

Collectively these are known as the ‘protected characteristics’ under the Equality Act 2010, which protects job applicants and existing employees, regardless of length of service. As an employer, you can be held vicariously liable for the discriminatory actions of your employees towards their colleagues. In addition, you can be held liable for discrimination that takes place at work social events, client functions and office parties. Employees can bring discrimination claims even if they are still employed by you and you need to know that there is no maximum limit to the compensation you may have to pay to an employee who successfully alleges unlawful discrimination. Employment tribunals often make additional awards for injury to an employee’s feelings.

Your main defence in these circumstances is to show that you took all reasonable steps to prevent such acts of discrimination by your employees. In order to minimise your liability risk you should:

  • Have, or put in place an “equal opportunities and anti-harassment policy” and ensure it is given to all new employees as part of their induction programme.
  • Make any breach of that policy a disciplinary offence up to and including gross misconduct.
  • Provide regular training on equal opportunities. Even if you only have one or two employees, ensure they are aware of their equal opportunities obligations.
  • Provide clear written guidelines on how your staff are expected to behave at work social functions, including rules on alcohol consumption.
  • Offer a complaints procedure that is confidential and deal with any discrimination or harassment complaints promptly and with sensitivity.
  • Never encourage, condone or turn a blind eye to unlawful or inappropriate conduct.

As always if you need more detailed help or advice on this topic, give us a call.

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Filed under Dispute resolution, Duty of care, Employment Law, HR Issues, UK Law

It’s that time of year again!

Office Christmas parties are a great way to boost your team’s morale, they “reward” staff and give them a chance to bond outside of the office/workplace environment, but beware, if things go wrong the repercussions for your business are likely to be greater than just a post party hangover.

It’s important that employers and employees remember that employment laws still apply at a works do even if the party takes place somewhere outside the workplace. As an employer, you may be held liable for any incidents of bullying or harassment that may take place during these events and you could face tribunal claims. Such incidents are more likely to occur when copious amounts of alcohol are involved so without risking being seen as a party-pooper, consider reminding your staff what constitutes unacceptable behaviour at staff social events and also highlight the likely consequences of such behaviour. Think about limiting the amount of alcohol available at your party, provide non-alcoholic options and supply plenty of food, these are two things that can minimise the risk of employees getting drunk.

Also consider your employees’ ethnic or religious backgrounds and try to make your party as inclusive as possible, so that everyone can enjoy it. Be sensitive to employees who don’t drink alcohol or who don’t eat certain foods and if you’ve booked any entertainment for the evening, it’s always a good idea to consider briefing any speakers or entertainers in advance to ensure that their material is suitable for everyone in the audience and won’t give offence.

Those hazards aside, have a great party and on behalf of us all at Bradley & Jefferies have a wonderful Christmas and happy and prosperous New Year.

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Filed under Christmas Party, Duty of care, HR Issues

“White Collar Crime!” In My Business?

You may be a small or medium sized company but you too can experience theft and fraud issues just like major companies. The good news is that SME’s have a much easier time identifying the culprit.

However there are a few tried and tested business practices and policies to help deal with this possibility on a day to day basis. Minor instances are easy to manage, but it pays to remember a minor problem can turn into a major problem if the perpetrator(s) think they can continue the fraud or theft without anyone noticing what is actually happening.

It pays to designate specific individuals to handle financial transactions and having another employee verify such transactions can help, but be aware it’s quite possible for two individuals to cooperate in committing a crime, covering for each other instead of keeping each other honest. This can be a real problem with both theft and money laundering.

As an owner it’s vital to inspect your financial records on a regular basis, continually if possible although this can be difficult, especially in a robust business with a large business volume. Remember that business is ultimately about profits and cash flow so put good financial oversight practices in place, if you’ve not already done so.

Take the time and effort to check employees for criminal records, people are often prosecuted on borderline or flimsy evidence, but any charge is an immediate red flag. Investigate the case particulars of any charge, even if the charge was dismissed. The actual charge is a public record also and, unless the accused has expunged all records, the indictment or arrest trail is still viewable.

Make sure you know your business partners; before entering into any contractual agreement, conduct thorough research about their previous business success and failures.
Have your books professionally audited annually, or if you can quarterly.  This can be expensive, but it also makes sense when taxes are paid quarterly.

As always if we can help or advise you on this or any other legal matter, give us a call.

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Filed under Duty of care, HR Issues, Uncategorized