The end of “fit to work” notes and referrals

Back in March 2010 I reported about the proposed introduction of fit notes, noting that the Government expected savings to the economy of £240 million over 10 years, by aiding the recovery to work of sick workers. Well, it didn’t turn out that way. By July 2010 there were teething problems. Bogus fit notes were widely available on the internet and offered for £9.99 with an introductory “buy one get one free” offer. A further and entirely predictable problem was that employers receiving the fit notes were unable to decipher GPs’ illegible handwriting and therefore overlooked key elements of the process such as, for example, arranging a structured return to work.

In 2015 the Engineering Employers Federation (EEF) reported that the scheme wasn’t working. By September 2014 only 5000 GPs from a pool of 40,854 had received training and 43% of employers said that the fit note had not helped employees to return to work. The EEF’s head of health and safety noted that the quality of advice being given by GPs to help people back to work was deteriorating and that, in order to work, the scheme needed greater resources.

Late in November 2017 it was quietly announced that the scheme is to be scrapped.

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Can an employee be disciplined for looking for another job?

Job Application Form You’d think this would be a weird question but I actually get asked this question on a fairly regular basis. Thankfully, I mostly get asked it by employees rather than employers but, in saying that, I can recall two employers (at a past law firm) that asked me this exact question.

The answer? Quite simply: it depends. It depends on the circumstances but, theoretically, yes, an employee can be disciplined for job hunting. In practice, however, it would be a rare occasion where an employer could safely do so.

To explore the dividing line, let’s look at three examples.

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Is sacking an employee who has miscarried an act of pregnancy-related discrimination?

Employment Law book Earlier in my legal career, I helped advise an individual who was subjected to detrimental treatment by her employer due to time off linked to a miscarriage. Naturally, I won’t identify the individual or the specific facts here but, save to say, their employer’s conduct made a very difficult situation even more stressful.

The biggest surprise I experienced during that case was their employer trying to argue that a miscarriage wasn’t pregnancy-related under the Equality Act 2010 because the employee wasn’t pregnant anymore. This is completely incorrect. Why?

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Calls for Government to adopt German model of redundancy protection for pregnant employees

Baby Toy There has been a sizable amount of space afforded to pregnancy-related discrimination in the media this past year. In fact, that’s one of the reasons for this series of pregnancy-related blogs. As such, it is becoming increasingly difficult for employers to escape accusations of pregnancy-related discrimination when it arises. This being said, there are charitable organisations out there that believe that more needs to be done: one of these charities is Maternity Action.

During the past week, Maternity Action have released a report (named “Unfair Redundancies”) calling on the Government to strengthen anti-redundancy protection for pregnancy employees. The most eye-catching statistics quoted by the charity include that 1 in every twenty mothers are made redundant during their pregnancy, maternity leave or return to work and that 77% of pregnant women felt discriminated against during their period of pregnancy.

Before we continue, let’s just dial down into that first statistic for a moment.

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“Our Line Manager has made discriminatory comments to a pregnant employee?”

Baby's crib with teddy“Our Line Manager, Rosemary, has made discriminatory comments about a pregnant member of staff, Thyme. Her comments include stating that Thyme “has baby on the brain” and has a “poor attitude”. Thyme has complained to the HR Director and is demanding action. What can we do and what could we be facing?”

Thankfully, the above scenario is hypothetical and not a client email. However, some managers do fall into the trap of making discriminatory comments against pregnant staff members and, in doing so, place their employers at risk.

As most employers are aware, pregnant workers obtain advanced protection from detriment under employment law. Contrary to popular belief, this doesn’t entirely prevent genuine concerns about an employee’s conduct and/or performance being formally investigated as long as they have nothing to do with their pregnancy. Unfortunately, in this case, the line manager’s comments appear to be entirely influenced by the Rosemary’s pregnancy and that is a big risk for the employer.

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A bitter feud played out in the High Court

Embed from Getty ImagesOver the last few weeks the High Court has heard some astonishing evidence in the bitter wrongful dismissal claim brought by the former CEO of Signia, a wealth management company, as reported in The Independent.

High profile entrepreneur John Caudwell has frequently made the news over the last couple of decades. The founder of mobile phones retailer Phones 4U has presented himself as a forthright, no-nonsense style of businessman. According to the website Caudwell.com (owned, registered and administered by one John D Caudwell and which is currently “down for maintenance”) he is a “successful entrepreneur and philanthropist” who “built an immensely successful mobile telecoms company”.

Signia is a wealth management company that was jointly founded by Nathalie Dauriac and six of her Coutts Bank colleagues in 2010. Another co-founder was Mr Caudwell. The business focuses on high end wealth management. All appeared to be well until details emerged of an extraordinary dispute between Ms Dauriac and Mr Caudwell, ostensibly in connection with expenses claims amounting to some £33,000. Ms Dauriac claimed that the expenses investigation was unfair and was, in effect, trumped up to deprive her of her £12 million 49% stake in the business, which was bought out for a nominal £2.00 fee.

Giving evidence in the High Court trial Ms Dauriac says that when they set up the business in 2010, “Mr Caudwell had asked me…as a last minute condition of jointly setting up the business, to give an undertaking to him not to have children, a proposal I did not agree to”.

Ms Dauriac claimed in evidence that Mr Caudwell orchestrated an “elaborate conspiracy” against her, resulting in her claim of constructive dismissal.

For its part, Signia maintained that she wrongfully claimed the expenses, that her approach to them was “brazen” and that she was “guilty of gross misconduct”.

In his evidence, Mr Caudwell said that the breakdown of his business relationship with Ms Dauriac, who he considered to be a “best friend” was like suffering a “bereavement”:

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Solving the riddle – Uber, Addison Lee, workers, employees and the self-employed

Confusing road sign The media has been awash with stories about ‘worker’ status recently. The most obvious being the recent Employment Tribunal decision that Addison Lee drivers are workers, not self-employed as the private hire taxi firm argued, and the similar decision against Uber a few months ago. The appeal for the Uber case was heard last week in the Employment Appeal Tribunal, albeit the decision will probably be announced in December.

So then, you may conclude, all taxi drivers are workers? No. Okay, so most of them are self-employed? No. Well, they must be full employees then? Not really.

To get into this, we should acknowledge one thing. The definition of “worker” in the Employment Rights Act 1996 is purposefully fuzzy. No, that’s not legal jargon, but an acknowledgement that the status is meant to catch those people who fall between the more obvious categories of employee and self-employed. Stereotypically-speaking, employees are those who work in an office on a rolling contract for a specified number of hours per week and self-employed individuals work for their own business and are ‘their own boss’. Now, in practice, it isn’t that simple, but let’s use those examples as vague signposts for now because, otherwise, I’ll need to name enough qualifications and exceptions to fill an employment textbook chapter!

So, ‘worker’ status is designed for those who aren’t ‘full’ employees or self-employed. But where is the line? Where does a ‘worker’ merge into an employee and when does a ‘worker’ get so far as to be effectively self-employed?

These are very good questions. In fact, they are such good questions that a lot of employers, including Uber, Addison Lee and Deliveroo, end up finding out at Employment Tribunal precisely because it is hard to specify otherwise.

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When can social media posts be used as evidence? – A Snoopy character study

Charlie BrownSocial media. Oh my. We all know the usual story of an employee getting ‘caught out’ by a social media post. But, in reality, social media is a complicated beast and never quite as straightforward as it appears. Can an employer normally rely on social media posts? Probably. Can it always rely on incriminating social media posts? No!

Before we get into it fully, it’s important to consider that even defining ‘social media’ is tricky nowadays. Raise your hands if you think you’re pretty au faux with social media websites? Good, good. So you’ve heard of all of the following: Facebook, WhatsApp, Tumblr, LINE, Telegram, Foursquare and Snapfish. I thought not… (Bonus point if you actually did!)

Now, we all know the standard tale. An employee posts something anti-employer on their social media or posts something that proves dishonest conduct and the employer then pulls out their social media policy, invites the employee to a Disciplinary hearing and a formal sanction (up to and including dismissal) is given. But, in reality, a lot depends on how that information comes to light.

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Handling Honeymoons

Moose sign Full disclaimer: I’m off on honeymoon soon. I plan to spend 3 weeks driving around Canada and, in my head at least, spotting many moose and bears and eating my body weight in maple syrup and pancakes! But, fear not Canter Levin & Berg, this article isn’t published as a hint to you but, rather, because I get a lot of questions from employees and employers alike about ‘honeymoon etiquette’!

Now, honeymoons are a curious beast. Firstly, because it tends to be one of the few occasions where an employee is allowed more than two consecutive weeks of annual leave and, secondly, because it remains a symbolic event in which a newly married couple are seen to go away and focus on each other which, naturally, doesn’t really interlink with the concept of working.

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Can an employee be dismissed for supporting a certain sports team?

A few weeks ago, I went to the Belgium Grand Prix. Lewis Hamilton and Sebastian Vettel had a race-long battle which, for the most part, revealed a fairly even mix of Ferrari and Mercedes fans in the crowd. Hamilton won and was cheered onto the podium. At the next Grand Prix, in Italy, Hamilton won again. This time he was booed on the podium due to the vast number of Ferrari fans at the event. And, this last weekend, at the Singapore Grand Prix, the Ferrari cars were lambasted for crashing into each other and Hamilton took another (cheered) victory.

Why am I telling you this? Well, depending on which race you went to, your status as a Ferrari or Mercedes F1 fan would get a different reception and, weirdly, this can be the same with different workplaces.

Football is the obvious starting point here. If I worked in Manchester and declared myself to be a Liverpool FC fan on the first day by walking into the office with a Liverpool FC scarf, I’d be unlikely to make friendly quickly. In comparison, I’d most likely get a warmer reception if I did so in our Canter Levin & Berg office in the city centre (albeit there is a sizeable Everton-supporting community here too!)

But, surely, even if that is the case, the title of this blog is a daft question? In this age of publicised Employment Tribunal claims and employment law protection, surely an employer can’t take the ultimate act of dismissing someone just because they support a certain football team or Formula One team?

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