Tuesday, January 17, 2017

Stress or Depression?

Stress and Disability Discrimination

Employers tend to get very nervous when an employee goes off sick with stress - particularly if the note from the GP states "work-related stress".  And quite rightly so, as this could indicate that there is a poor culture, maybe even a bullying culture, within the workplace. 

But sometimes employees will suffer stress in reaction to something at work that they are just unhappy about but which most people would consider quite reasonable.  It could be that they face disciplinary proceedings for misconduct or are being tackled over their under-performance.  It is also true to say that some employees will "swing the lead" and get themselves signed off with stress, because its symptoms are well reported and it is easy to persuade some GPs to sign them off on that basis.

It is unlikely, however, that any employee who suffers stress will be considered to be disabled in legal terms.  Unlike depression, which is a clear clinical condition which can be long term and can impact massively on someone's ability to carry out normal day to day activities, stress is normally of short-term duration and is a reaction to a specific event or set of circumstances.  In Herry v Dudley Metropolitan Borough Council, the Employment Appeal Tribunal considers this question and provides a very clear and in-depth analysis of the difference between the two conditions in the context of disability discrimination.  It also points out that confusion can arise when some doctors talk about employees suffering from "depression", when they actually mean "stress" or "anxiety", and the difficulty in establishing clearly whether a diagnosis of depression has actually been made.

Some employers and employees are reluctant to talk about stress, but it's normally best to treat it as you would any other illness, and try to talk openly to employees who disclose that they are suffering.  With support and the right treatment its effects can be well managed and any impact on work is often short-lived.

If you need any help with this aspect of people management, please contact us.

Thursday, January 21, 2016

Rates for Statutory Sick Pay & Maternity Pay Frozen

Government Proposed no Increase in Family Friendly and SSP

Last month the Government announced its proposal for benefit and pensions rates for 2016/2017.  This includes the statutory payments that employers are obliged to make for Sick Pay, Maternity Pay, Paternity Pay, Adoption Pay and Shared Parental Pay.  The current levels are to be unchanged for this year.  That is £88.45 per week for SSP and £139.58 per week for the other Statutory "family friendly" payments.

The lower earnings limit, which is the trigger for entitlement to these payments, will also be frozen at £112 per week.

Thursday, January 14, 2016

Time to Review Staff Contracts and Handbooks

When did we last take a look at your HR documents?

The New Year is always a time to consider the future.  To pause and take stock, and to plan for the year ahead.  This New Year it may be a good time for us to look again at your HR documents to check that they are still fit for purpose.  There have been many employment law changes over the last few years, and organisations change and develop all the time, so it is possible that your HR documents are ready for an update or a general refresh.

Do you have a robust social media policy that still makes sense in terms of the rapid changes we have seen in that field?  Do you have enough flexibility built into your contracts to allow you to vary staff's hours of work or location?  Are their job descriptions up to date?

If you need any help or would like to arrange a review please do get in contact.

Monday, November 30, 2015

Apprentices and Other Young Workers

Working Time for Young People - Are you Complying?
It is relatively common knowledge that the Working Time Regulations state that workers cannot be compelled to work more than 48 hours per week, calculated as an average over 17 weeks.  Most people also know that workers are able to opt out of this restriction, so that they are able to work long hours on a regular basis and thereby benefit from a higher income.
But many employers are unaware that this does not apply to young workers, including some apprentices.  Young people are defined as those who are over school-leaving age* and are under 18.
Young workers are not allowed to work more than 8 hours in any day, and no more than 40 hours in any week.  This is not worked out on an average basis, it applies to each individual day and week.  They are also entitled to at least a 30 minute break in any day when they work longer than 4.5 hours.  Young workers are also not permitted normally to work between 10pm and 6am.
There are some exceptions to these restrictions, but they are few and far between. There are also health and safety measures that apply to young workers, to take into account their relative youth and lack of experience, compared with adult workers.
Please get in contact if you would like any more information about employing young workers.
(* in England young people can leave school on the last Friday in June if they will turn 16 by the end of the summer holidays)

Wednesday, November 25, 2015

Government Proposal for Extended Family Leave

Shared Parental Leave to be Extended to Working Grandparents
Last month George Osborne announced plans to extend the still relatively new right to Shared Parental Leave to take into account the extended family.  It is intended that this right will be extended beyond just mothers and fathers, to include working grandparents.
Shared Parental Leave is still currently "bedding in" and, anecdotally at least, there does not seem to be much take up of it at the moment.  Women are still tending to take their full maternity leave entitlement, without sharing some of it with the father, as is provided for under the Shared Parental Leave arrangements.  So it is unclear how much take-up there will be from working grandparents.  However, it is possible that take-up may be higher for grandparents, as many of them may be in lower paid jobs, as they head towards the end of their working life, and may be in a better position to take time off unpaid or at the statutory level.  Many fathers are still the main wage earners, or are on a par with the mother, so it is not always so attractive for them to take this time off.
The Government will consult over this proposal next year, with a view to introducing it in 2018.  So watch this space!

Wednesday, November 18, 2015

New Fit For Work Scheme Fully Rolled Out

Will Employers Find the New Scheme Beneficial?
The Government's Fit For Work Scheme is now available across the UK.  GPs and Employers are able to refer employees to the Scheme when they have been off work sick for 4 weeks.  Employers will need to seek the employee's written consent before any referral and Fit for Work needs consent from employees before they share any information with employers.
The aim of the Scheme is to encourage employees to get back to work sooner rather than later. For small to medium sized employers it may serve as an alternative to more costly occupational health services.  Fit for Work is free (it is funded by the Government from the savings made when it stopped refunding SSP to employers).
Fit for Work will carry out an assessment of the employee and will seek to draw up and agree with the employee a personalised return to work plan.  This will be provided to the employer who will then need to consider whether it is able to accommodate the return to work plan.  This may consist of a phased return, reduced or altered duties, a period of working from home, changes to the workplace or work station for the employee, extra support or supervision, etc.  The employer is not obliged to follow the return to work plan, and in some cases it may not be feasible due to a lack of resources, cost, the difficulty with restructuring work, etc. 
It will be interesting to see how effective the Scheme is.  This will depend very much on individual circumstances, but one benefit that we can see immediately is that intervention will happen at a relatively early stage - after just 4 weeks' absence.  Previously an employer would be reluctant to seek medical information at such as an early stage because of the cost of a medical report or of a referral to an occupational health specialist.  After just 4 weeks it is often unclear if the employee is heading for a prolonged period of absence or is likely to return in the near future, so this Scheme should help speed things up a little.

Tuesday, October 20, 2015

Voluntary overtime may need to be included in holiday pay calculations

Holiday pay and how it should be calculated remains one of the most hotly debated questions in the world of employment law.  The Northern Ireland Court of Appeal has recently added to this debate by suggesting that it may be necessary to include an amount to cover overtime pay that the employee would miss by being on holiday, even where there is no obligation to work any overtime and they do so on a completely voluntary basis. 

As we reported in January, the Employment Appeal Tribunal has previously ruled in Bear Scotland v Fulton that non-voluntary overtime should be included in many cases, but there has been a lack of clarity on when this obligation arises.  In the Bear Scotland case, the employees in question were obliged to work overtime and did so pretty much every week.  So it appears sensible that they should receive holiday pay equivalent to the pay they would normally receive (including overtime).

What it all boils down to is that staff should receive their normal week's pay for a week's holiday.  If they have contracted hours and stick to those every week, then their normal pay is clear.  If they work overtime pretty much every week, then it is likely that will need to be taken into account when working out holiday pay (by taking an average of their pay over the 12 weeks preceding the period of holiday).

Where overtime is worked on a much more sporadic basis, then it may be possible to argue that holiday pay should just be the basic pay with no adjustment for overtime. It could be argued that they often work just their basic hours and receive their basic pay for those weeks, so they are not losing out by being paid the same amount for a week's holiday.

It seems unlikely that we will ever receive an exact answer to this question from the courts; they will always decide on these sorts of matters based on the specific facts of the cases brought before them.  As an employer, therefore, you need to consider whereabouts on the spectrum of overtime plus basic hours your staff fall and decide on the best approach accordingly.  Please get in contact with us if you would like any further advice on this matter.