HR and Employment Law FAQs May 2024

The Department for Work and Pensions (DWP) has published a new Disability Confident guide to help managers recruit, retain and develop people with a disability or health condition in the workplace. This new tool, which has been developed by Disability Confident (an initiative which encourages employers to think differently about disability) and the Chartered Institute of Personal Development, aims to ensure employers and employees get the most from the Government’s Disability Confident scheme, to boost disability employment and reduce the disability employment gap.  

The new guide provides managers with information on a range of topics, including:
 

• why employing disability people makes good business sense;
• the vital role managers play in creating an inclusive working environment to attract and retain valuable skills and talent;
• an overview of the law relating to disability in the workplace, including the importance of ensuring fair treatment for colleagues and advice for managers on identifying appropriate workplace changes or adjustments to support employees with a disability or health condition;
• language and behaviour (for example, the guidance flags the campaign by disability charity Scope to “End the Awkward”, which aims to help people feel more comfortable about disability);  
• recruitment, managing new starters, career progression and retaining talent;
• disclosure of information about a disability or long-term health condition and the importance of confidentiality;
• managing sickness absence (including guidance on fit notes and working with occupational health);
• supporting those with specific disabilities and long-term health conditions in the workplace (such as long-Covid, mental health, learning difficulties, neurodiversity, and visual and sensory impairment); and
• employees leaving the business or organisation (for example, handling exit interviews and dismissal, including redundancy processes and criteria).

The guide flags the importance of the managers being knowledgeable about their organisation’s framework for managing people with a disability or health condition and understanding their role within that framework.  It includes useful links to other resources which provide further information for managers, such as ACAS, the EHRC, disability charities, the HSE and government schemes (such as the Access to Work scheme).

According to official statistics, there are currently around 9.5 million people of working age with a disability in the UK, and yet only 5.1 million of them are in work.  The DWP recognises that this represents a huge pool of untapped talent which businesses cannot afford to ignore, particularly in view of the ageing population and the likelihood that a greater proportion of the workforce will develop a health condition or disability.  With this in mind, we recommend that employers encourage their managers to carefully review this new guidance and consider providing further specialist training on how to support disabled people and those with health conditions within the workplace. Make UK can provide these services - please contact us for further information.  

If you are a Make UK subscriber, you can also speak with your regular adviser and/or access further information in our HRL Resources.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources please click here for information on how we can help your business.

The flexible working legislation does not expressly provide for or regulate trial periods, and the updated ACAS Code of Practice on requests for flexible working (which came into effect from 6 April 2024, see here) only includes limited information (just stating that “it may be helpful to discuss whether a trial period may be appropriate to assess the feasibility of an arrangement”). However, there is nothing to suggest that a trial period is not possible and in our experience trial periods can be very useful for testing the feasibility of a proposed new flexible working arrangement.

You can agree with an employee whatever temporary variations to their terms and conditions of employment you consider to be reasonable during a trial period, bearing in mind the way you adjust entitlements for other part-timers as appropriate. If an employee is reducing their hours, it would be usual to pro-rate salary during the trial period and, if it is practical to do so, you could pro-rate other benefits too. Having said that, do be mindful of discrimination risks, as part-time employees should not be treated less favourably than full-timers, and you must not subject an employee to any detriment for having made a flexible working request. Make UK subscribers can read more about these issues in the HRL Resources on our website: Discrimination against fixed-termers and part-timers | Make UK and Flexible working requests | Make UK.  Given the possible risks, we would recommend taking legal advice on your specific circumstances. 

As we explained in our flexible working webinar, “Handling flexible working requests: getting to grips with the new rules” on 5 March, it is important to document carefully in writing the terms that apply during any trial period.  It is also advisable when offering a trial period to specify that if you reject the request after a trial period, the employee will revert to their original working arrangements and terms and conditions.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information (including our Policy – flexible working (and application form )) in the Family rights and flexible working section of our HRL Resources.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources or purchase our pack of essential flexible working documentation. Please click here for information on how we can help your business.

A 'constructive dismissal’ arises where an employee resigns because the company's actions have made the employee’s situation untenable and the employee claims that this amounts to a dismissal. An employee who has been constructively dismissed is entitled to resign without giving notice but may decide to give notice of resignation. The employee may claim that the dismissal was wrongful, unfair, or both (and could also bring other claims in relation to the dismissal, for example, discrimination). The basic rules of constructive dismissal are that the employee must be able to prove that:

• the employer acted in serious breach of their contract of employment, in a way that went to the heart of the employment relationship or indicated that the employer no longer intended to be bound by one or more of the essential terms of the contract. This is sometimes referred to as a 'fundamental' or 'repudiatory breach' of contract; and
• the employee's resignation was caused by the employer’s actions; and
• the employee did not wait too long before resigning.

An employer can constructively dismiss an employee not only through a one-off single act that is in serious breach of contract, but also by a course of conduct involving several less serious incidents that cumulatively amount to a fundamental breach of contract.

A constructive dismissal can result from the breach of an express term or an implied term of the contract. An implied term of particular importance here is the employer’s duty not, without reasonable cause, to act in a way that undermines the mutual trust and confidence that is essential to the employment relationship. 

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information in the Termination of employment section of our HRL Resources. 

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business. 

The answer to this question will depend on the circumstances. The legal test is that an employer must undertake ‘such investigations as is reasonable in all the circumstances’. The more serious the allegation against an employee, the more thorough the investigation should be. In addition to interviewing an employee about suspected misconduct and interviewing witnesses, it is important to consider whether there is any physical evidence which may be relevant to the investigation. 

For example, if an employee is suspected of abusing the company’s expenses policy, relevant evidence may include expense forms and receipts the employee has submitted.  In some circumstances you may need to consider visiting the scene of an alleged incident and taking photographs, as this may shed light on an employee’s or witness’s version of events.  

Depending on the situation, gathering relevant evidence might also involve accessing an employee’s e-mails or the employee’s company telephone records. (Remember to take copies of relevant documents as these will be required at any subsequent disciplinary hearing.)  We would advise you to contact us for specific advice before implementing any monitoring or surveillance techniques.

If you are a Make UK subscriber, you can speak to your regular adviser for guidance on disciplinary investigations and/or access further information in the Discipline, grievance and performance section of our HRL Resources. Also see How to – handle suspected online misconduct for guidance on conducting investigations involving social media. 

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

The Information Commissioner’s Office (ICO) is the UK’s national independent regulatory body responsible for enforcing data protection and information rights. The ICO usually acts on the basis of complaints received from data subjects, but it can also act on its own initiative to investigate suspected breaches of the law.

The ICO can ask you questions via an information notice (which you must answer) or issue an enforcement notice (which you must comply with). It can also enter and inspect premises. For serious breaches, the ICO can issue a penalty notice (i.e. a fine). The maximum fine is £17.5 million, or 4% of an undertaking’s global annual turnover, whichever is higher, but the amount will be determined based on the type of breach concerned and the facts of the individual case. The ICO has recently published new guidance setting out the circumstances in which it might issue a penalty notice, and how the amount of any fine will be determined.

As outlined in the guidance, the ICO may impose a fine by issuing a penalty notice where a person has failed (or is failing) to comply with certain provisions of the UK General Data Protection Regulation (the ‘UK GDPR’) or Data Protection Act 2018 (the ‘DPA’).  This could include, for example, where someone has failed or is failing to comply with rules relating to: the principles of processing, such as retaining data when it is no longer needed; rights conferred on data subjects, such as providing incomplete information when responding to a subject access request; obligations placed on controllers and processors, such as failing to  report a personal data breach to the ICO; and the principles for transfers of personal data outside the UK.  

The ICO may also impose a fine where a person has failed to comply with an information notice, assessment notice or enforcement notice given under Part 6 DPA.  This could include, for example, where a person has failed to or is failing to: provide information that the Commissioner reasonably requires; allow the Commissioner to inspect or examine documents, information, equipment or material; or comply with a requirement set out in an enforcement notice (such as a requirement to rectify or erase personal data or otherwise comply with the UK GDPR or DPA 2018). The guidance explains that, when assessing whether it is appropriate to issue a penalty notice, the Commissioner will have regard to various factors including: 
 

• the seriousness of the infringement or infringements; 
• any relevant aggravating or mitigating factors; and 
• whether imposing a fine would be effective, proportionate and dissuasive.

If the Commissioner decides to issue a penalty notice, the amount of the fine will be calculated by applying the following five step approach (which is explained in further detail in the guidance): 
 

• Step 1: Assessment of the seriousness of the infringement.
• Step 2: Accounting for turnover (where the controller or processor is part of an undertaking).
• Step 3: Calculation of the starting point having regard to the seriousness of the infringement and, where relevant, the turnover of the undertaking.
• Step 4: Adjustment to take into account any aggravating or mitigating factors.
• Step 5: Assessment of whether the fine is effective, proportionate and dissuasive.

The guidance notes that the above approach “is not intended to be mechanistic. The overall assessment of the appropriate fine amount involves evaluation and judgement, taking into account all the relevant circumstances of the individual case”.  

As noted above, breaches of data protection rules can be costly, so it is important to make sure you understand the relevant rules and take active steps to comply with them. 

If you are a Make UK subscriber, you can speak to your regular adviser for guidance on data protection issues and/or access further information in the Employee data and monitoring section of our HRL Resources. For information about our suite of essential template GDPR documents, see here. 

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.