Aside from the continuing debate on zero hours contracts, it’s been a relatively quiet year for employment law developments, so I’ve chosen to highlight some of the most common issues that I have been asked to advise on in 2015.
Criminal records checks may be carried out subject to certain conditions and requirements, but are usually unnecessary for most employees. They should be requested only where the need to protect the employer's business, customers or clients makes it appropriate. Restrictions apply on who can be asked to disclose spent convictions and generally, unless there’s specific need to check someone’s criminal record for a job, it’s against the law for employers to refuse to employ them because of spent convictions. In some financial services areas, those who perform regulated roles can be asked to disclose spent convictions.
It is generally unlawful to ask about a job applicant’s health before offering a job. Health checks are permitted only if they are justified by an occupational requirement. The Glasgow bin lorry case has highlighted the possible problems with not asking relevant health questions, but they may only be asked if justified – for example, in this case, where the employee will be driving a commercial vehicle.
Credit checks can be carried out in limited circumstances, and only where it is relevant to the position for which an applicant has applied. For example, a credit check would likely be appropriate only if the position involves handling cash or accounts or working for a financial institution. The FCA consider the following checks as relevant for establishing Fitness and Propriety for Approved Persons, although they are not mandatory:
- Regulatory references
- Qualification certificates
- Credit checks
- Criminal Records checks
- Directorship checks.
Employers must request, and individuals must provide, certain original documents to establish their eligibility to undertake the work on offer. These can include passport, residence permit and residence card. The documents that are required depend on whether the person is subject to immigration control. The employer must check the validity of the original documents and be satisfied that the individual is the person named in them and that he or she has the right to work in the United Kingdom. Once an employer is satisfied with the validity of the documents, it must make copies of the relevant pages of the original documents provided in a format that cannot later be altered. These documents must be retained for the duration of the individual's employment and for a further two years after employment has ceased. Penalties for failing to do this have increased, and can be up to £20,000 for each worker. This is quite a complex area and you can find more information here.
Any media searches undertaken should be necessary, proportionate and transparent. If no justifiable reason for conducting media searches exists, they should not be done.
Privacy and Monitoring
Employees’ rights to privacy and employers’ rights to monitor their employees are broadly governed by the European Convention on Human Rights, incorporated into UK law by the Human Rights Act 1998 and the Data Protection Act 1998.
Individuals have a right to privacy under the Human Rights Act, which includes a right to some degree of privacy in the workplace. Employers must therefore always act reasonably when monitoring their employees’ use of emails, telephones and the Internet, and should have an IT policy in place which makes it clear that employees may be monitored so that their expectation to privacy in the workplace is reduced.
The Data Protection Act must also be considered when monitoring employees’ emails, telephones and internet usage, since monitoring will amount to the processing of personal data. Employers must comply with the eight data protection principles of the Data Protection Act. For example, employers must process personal data fairly and lawfully and this requires employers to provide employees with detailed information about any monitoring which is in place. This should appear in your employee handbook. In addition, personal data must be adequate, relevant and not excessive for the purposes for which it is processed.
To what extent can employers regulate off-duty conduct?
It’s that time of year again and the office party can be a source of great enjoyment. Unfortunately, when alcohol is involved, it can also present problems. Most employment contracts will contain express terms in addition to implied terms that relate to an employee’s conduct during the whole of his or her employment period. Although these are unlikely to relate specifically to an employee’s off-duty conduct, they will encompass an employee’s conduct at any time during employment, which may include time when the employee is not in the workplace – social occasions for example. They include the duty to serve the employer with good faith and fidelity, not to disrupt the employer’s business and not to engage in conduct which may bring the employer’s business into disrepute. These are fairly broad ranging and if you are having an office ‘do’, it might be just as well to remind employees of their responsibilities and save yourself some hassle in the New Year.
Discipline and Grievance Procedures
Employment contracts or written statements of terms and conditions of employment must contain details of the employer's disciplinary rules and procedures and explain how an employee can raise a grievance. The disciplinary and grievance procedures should comply with the Advisory, Conciliation and Arbitration Service’s (ACAS’s) Code of Practice on Disciplinary and Grievance Procedures, which sets out the minimum standards of good practice for employers and employees.
If an employee's disciplinary or grievance leads to a successful claim in an employment tribunal, the tribunal can penalise either party for failing to follow the ACAS code by increasing or decreasing the employee's compensation by up to 25%.
An employer facing a discrimination claim on the grounds that it is liable for the acts of its employee, may be able to avoid liability if the organisation can show that it took ‘all reasonable steps’ to prevent the employee carrying out the discriminatory act - this is known as the ‘Statutory Defence’. Reasonable steps might include having policies in place which prohibit discriminatory behaviour and carrying out training to educate employees on those policies. This is where most firms fail.
The ‘all reasonable steps’ defence may cause an employee’s discrimination claim against an employer to be unsuccessful. However, if the claimant has named the individual who carried out the discriminatory act as a respondent to the proceedings, the claim against that person remains ‘live’ and could result in an award of compensation which is recoverable solely from him or her. This is particularly relevant in the recent case of the Chelsea FC doctor, who has specifically named Jose Mourinho in her action against the club.
However, there is a word of warning here for all employers: the ‘all reasonable steps’ defence is not a failsafe and, in order to satisfy an employment tribunal, employers will generally not only need to point towards a policy which prohibits acts of discrimination or harassment, but also to show they have strictly implemented such policies. As such, it is worth the firm asking whether:
- the right policies are in place to prevent acts of discrimination or harassment in the workplace
- all employees, managers and ‘agents’ of the company (someone who has the power to act on behalf of the employer) know about such policies
- all employees, managers, and agents have been trained in connection with the policies
- the training on the policies has been updated on a regular basis
- the organisation practices what it preaches and takes action if the policies are breached
- the organisation has recorded any training provided to employees, managers, and agents, and can give evidence that the policies are integrated into its business.
If the answer to any of the above questions is “No”, it is worth employers taking action to establish the foundations for such a defence in case an employee seeks to bring a discrimination claim in the future. We can help you to do this, so do call us if this is something that you are lacking.
We’ve had shared parental leave become law – by now you should have a clear policy in your handbook – but the Government is now proposing extending this to Grandparents. Evidence suggests that nearly 2 million grandparents have given up work, reduced their hours or have taken time off work to help families who cannot afford childcare costs. Grandparents may be contributing as much as £8bn each year to bridge the gap as work pressures increase.Evidence shows more than half of mothers rely on grandparents for childcare when they first go back to work after maternity leave, and over 60 per cent of working grandparents with grandchildren aged under 16 provide some childcare. In total, some seven million grandparents are involved in childcare.
The plan is to implement this by 2018, but we will keep you updated.
In the meantime, have a very Happy Christmas and we look forward to working with you all in 2016!