Category Archives: Mark’s Monthly

88 year old wins age discrimination case

With more and more people opting to stay at work rather than retire at what would previously have been seen as traditional retirement ages, the news this week that an 88 year old woman has become the oldest person in the UK to win an age discrimination case is a timely reminder of the need to take this ground of discrimination as seriously as we would take other grounds.

Mrs Jolly, a medical secretary, was dismissed by her employer, Royal Berkshire NHS Foundation Trust when she was 86. The dismissal was on the grounds of capability. However, the finding of the tribunal was that the employer’s treatment of her was discriminatory on the grounds of both age and disability – she suffered from arthritis and a heart condition.

Some of the actions of the employer that contributed to the finding of age discrimination were as follows:

-          She was described as being stuck in “old secretarial ways”.

-          She was not afforded the same opportunity for training. The perception was that because of her age she was not going to be helped by training.

-          Comments made by other members of staff were unfairly considered in the capability process. This included comments about her “frailty” and inability to walk the length of the building.

The judge found that any such comments made about a younger member of staff would not have been allowed to pass.

If you’re interested, you can read the judgment here

What this judgement shows is that it is important to be alive to the possibility of age discrimination coming in on the basis of stereotyping. It should not be assumed, for example, that an older employee will not be interested in training. Such opportunities should genuinely be available to all.

It is also important to remember that the same can happen with younger employees. An example would be of criticism leveled at a young worker which would not be made in the same manner to an older employee.

The moral of the story is that all employees are to be treated with respect regardless of age, and the wise employer will ensure that practices and procedures reflect this.

New Year’s Resolution? Start tackling problems at an early stage

In this first blog post of 2019, we’re suggesting a New Year’s Resolution for employers. Very few people like having difficult conversations but, in an employment context, it’s important that matters are addressed at an early stage.

We recognise that it is often difficult to deal with concerns over performance or minor conduct issues. However, issues such as a lack of attention to detail, poor timekeeping, a below average attendance record and too much use of mobile phone in the workplace can have a negative impact on productivity and can affect morale and so should be dealt with at an early stage.

Too often managers neglect to address minor issues at an early stage. The effect of this is that the issue “snowballs” and resentment builds up, leading to a bigger problem down the line.

The Codes of Practice on dealing with disciplinary issues in the workplace (the LRA Code in Northern Ireland and the ACAS Code in GB) advocate dealing with minor issues of performance and conduct in an informal manner. Very often all that is required is a quiet word where the manager advises the employee that they have noticed a certain issue and pointing out the improvement that is required. If this leads to the desired improvement, that is the best outcome for all concerned. The employee is spared from formal disciplinary proceedings and the manager and colleagues of the employee benefit from the improvement. Only if improvement is not forthcoming or not sustained should a manager then consider moving to a formal disciplinary process for a minor performance or misconduct offence.

Our advice to employers at the start of this New Year is to nip issues in the bud early before they become bigger problems down the line. A quiet, informal conversation at an early stage usually benefits everyone involved and prevents the issue becoming a bigger one with more serious consequences. If this does not resolve the issue and you have to go down a more formal disciplinary route, the employee will not be able to say that they have not had the issue drawn to their attention before the matter went down a more formal route.

Of course, as ever, we can be contacted for advice in relation to anything contained in this article or anything else to do with the law and good practice around employing people.

Uber, holiday pay and Happy Christmas

In 2018, two issues dominated employment law  – employment status and holiday pay. Both on the news and in our advice to clients, these two issues came up time and time again this year.

In relation to employment status, you may be aware of cases on the news where individuals were treated as self-employed but are asserting that they should have the benefit of workers’ rights. The Uber case was in the news today as the Court of Appeal (by a majority) upheld the Tribunal’s view that the drivers should be treated as workers. You can read the BBC summary of the case here –

We have advised on lots of working arrangements this year, considering both the contractual documentation and the reality of the working relationship to ensure that the client is attaching the correct employment status to the individual as getting this wrong can be costly in terms of liability for minimum wage, sick pay and holiday pay.

In relation to calculating holiday pay, the case law has continued to develop around an employee’s entitlement to be paid their normal rate of pay during periods of annual leave. Employees should not be disadvantaged as a result of taking annual leave so should receive their normal pay to include commission and overtime and not only receive basic pay during periods of annual leave.

The case law is likely to develop further in these areas in 2019 as various cases go to higher courts of appeal. Uber has said it intends to appeal the Court of Appeal’s judgement to the Supreme Court. We will keep you informed of all the important developments in employment law through our Mark’s Monthly articles in 2019.

All that remains is to say thank you for your support in 2018 and to wish you a very happy Christmas.


Holiday pay – again!

With one month to go in the year and many organisations using the calendar year as their leave year, we’re taking this opportunity to remind clients of what they need to know about holidays and holiday pay.

There have been further high profile cases on holiday pay in recent weeks – one involving the Police Service in Northern Ireland and another from the European Court of Justice.

So, what do employers need to know about holidays and holiday pay? Here are the main points:-

1. All employees in the UK are entitled to 5.6 weeks’ paid annual leave per year

2. Holiday pay should be based on average earnings including commission and regular overtime, not just basic pay. There are some issues to be resolved in the case law in this area regarding whether there is a distinction to be made between the 4 weeks’ leave granted by the European Directive and the additional 1.6 weeks granted under UK law. However, it seems to us that it would be prudent for employers to be paying average earnings to employees for all periods of annual leave throughout the year

3. Employers must demonstrate that employees have had the opportunity to take their full annual leave allocation throughout the leave year. This will be significant for any employer who operates a “use it or lose it” approach to annual leave

4. Annual leave continues to accrue during long-term sick leave

5. Annual leave continues to accrue during an employee’s notice period. If an employer wants an employee serving notice to use up annual leave during the notice period rather than be paid in lieu of accrued leave on termination of employment, the employer must give notice to the employee of the requirement to take annual leave. The notice must be twice as long as the period of annual leave to be taken.

Holiday pay is a complex area. The purpose of this article is not to go into any particular aspect in detail but to highlight the main areas employers need to be considering. For advice in relation to any of the issues raised in this article or anything else to do with employment law, please contact us.

Managing absence

Everyone falls ill from time to time and employers should understand that there will be occasions when employees are off work due to sickness. However, a good attendance record from employees is essential to the smooth running of any organisation. When employees are absent on sick leave, this is not only a difficulty for the absent employee but also for their colleagues who often find that they have more work to do to cover for the absent employee. For the smooth running of the organisation, it is essential that absence management is handled in a pro-active manner.

Reporting absence

Employees should be made aware of what reporting mechanism is in place for them if they are absent from work. This should be set out in an absence policy and it is important to ensure that a copy of this is easily accessible to employees so that they know who to contact if they cannot attend work due to sick leave. It is usually best to require employees to telephone their line manager personally where possible so that as much information as possible can be gathered about the sickness absence and the expected duration of the absence.

Keeping in touch during a period of absence

Employers are often nervous about keeping in touch with employees, in case they are accused of harassing a sick employee. However, lack of contact or involvement could lead to an employee feeling that the employer does not care.  Appropriate contact is essential. If the contact is supportive and caring, and focused on supporting the employee, there should be no difficulty with it.

If the absence is for a lengthy period of time, it is important to keep in touch with the employee to remind them that you care about their welfare and to keep them updated about changes in the workplace. Ongoing contact is also important to ensure that the employer always has the most up to date information and is working from an informed stance when considering timescales for a return to work and whether any adjustments can be made to facilitate a return to work.

Employees should be made aware of their responsibility to keep in contact during their sickness absence, although an employee who is seriously ill is unlikely to be able to comply with normal reporting requirements.

Sometimes employees request that the employer does not make contact during sickness absence. It is important to establish the reason for this request as it may identify that there is an issue in work that is contributing to the employee’s ill-health and, if the employer is aware of this, steps can be taken to address the issue and work towards a resolution and the employee’s return to work.

Seeking medical opinion

It can be helpful to take advice from a sick employee’s doctor regarding the employee’s condition, expected timeframe for recovery and whether you can do anything to assist the employee in returning to work. It may also be appropriate to consider arranging an assessment with an occupational health doctor. Your employee does not have to give permission for you to write to their doctor or consent to you obtaining a report from an independent doctor but if consent is refused, you can tell the employee that you may have to reluctantly make decisions regarding their employment without the benefit of medical opinion.

Returning to work

The absence management process does not end when the employee returns to work. The employee’s line manager should conduct a return-to-work interview with the employee after their absence, so that the employee is aware that their absence has been noted and so that any support the employee might need upon returning to work can be identified. The return-to-work interview also gives the line manager the opportunity to raise any concerns about the absence, particularly if the employee has a poor attendance record. A written record should be kept of the return-to-work interview.

Terminating employment due to long term incapacity

If, having conducted enquiries and sought medical opinion, it is apparent that there is little reasonable prospect of the employee returning to work, the employer may consider terminating the employment by reason of the employee no longer being capable of doing the job. Great care should be taken when exploring this option. The statutory dismissal procedure should be followed in full and employers should be conscious of the need to explore whether reasonable adjustments could be made to accommodate an employee’s return to work. There is a specific duty to make reasonable adjustments for employees who are disabled.

Persistent, short-term absences

Persistent, short-term absences can be addressed using a disciplinary or capability procedure as appropriate. An employee should be made aware that there are concerns about his or her attendance before any formal procedure is invoked. The employee should be aware that a lack of improvement in attendance might result in  warnings being issued. If ultimately there is no improvement, dismissal may be a fair outcome after warnings have been issued, though of course it will be important to follow a fair procedure, including adhering strictly to the statutory dismissal procedure.

If there has been a serious breach of the absence policy, an employer might consider whether this amounts to gross misconduct and should result in summary dismissal. A typical example of this may be where the employee informs the employer that they are ill and then is spotted working elsewhere while off work on sick leave.


Absence management is difficult. While procedures are important, it is also vital to exercise common sense and discretion and deal with matters on a case by case basis. It is not possible to provide a comprehensive checklist of actions to take in relation to every absence. If an employer is concerned about an employee’s attendance record, either through a long term absence or persistent short term absences, specific advice should be sought on the particular situation.


This article intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

Employed or self-employed?

Readers may be aware from various news reports in recent years, that here have been several cases taken relating to an individual’s employment status. Typically, the company or organisation asserts that the individual is self-employed and the individual is arguing that they are in fact an employee or worker.

There are certain distinctions between “employees” and “workers” but this is not the focus of this article. Rather, this article concentrates on whether someone is self-employed (with no employment rights) or a worker or employee (with some or all employment rights). Workers and employees have the right to the minimum wage and paid holiday, whereas the self-employed do not. These are the rights that the individuals taking the cases that have been in the news tend to be arguing for. 

The case law is clear that the stated intentions of the parties in any written agreement is only one factor to be considered. An arrangement that is not genuinely self-employed cannot be made into a self-employed arrangement simply because a written agreement says so or because the organisation requires the individual to invoice for their time and tells them that they are responsible for their own tax.


So  what are some of the factors to weigh up in determining the correct employment status? 

Personal service

Is the individual free to send a substitute to carry out the work? If so, they are likely to be self-employed. If however they are required to perform the work personally and cannot send a substitute, this is more consistent with the individual being an employee or worker.


The greater the degree of control exercised by the organisation over the activities of the worker, the greater the likelihood that the arrangement is one of employer and employee. If the person is free to decide how and when to provide the service, this is more consistent with self-employment. Of course some degree of control is always exercised by the client of a self-employed person in relation to how the work is carried out and what the end product or service should look like and, as there is no definitive tipping point where sufficient control is exercised for the arrangement to be not genuinely self-employed, that it is always important to look at other factors, such as…

Equipment and insurance

A self-employed person would generally be expected to provide the means to carry out the tasks they have been engaged to carry out, including any tools and administrative support. A self-employed person would also normally be expected to carry their own insurance.

On the other hand, an employee is likely to have the equipment to carry out the work provided by the organisation and be covered by the organisation’s insurance. 


The “integration” test considers the extent to which the individual is a part of the organisation. Are they fully integrated into the organisation and considered a part of the team or do they simply provide a service to the organisation? Are they included in staff meetings and staff social events? Would an outsider consider them to work for the organisation?  

The more integrated a person is into an organisation, the more likely it is that they are an employee. If the person more clearly is providing a service ancillary to the organisation and is not considered part of the staff team, they are more likely to be self-employed. 

No single factor is likely to be conclusive by itself. What is required is a weighing up of the aspects of the arrangement that look typical of self-employment against those aspects that look typical of employment and a decision made on balance, having considered all relevant factors.

Attaching the correct status to the arrangements on which people are engaged is hugely important for a number of reasons and getting it wrong can have major implications in relation to tax and employment rights. If you engage individuals in your organisation on anything other than an employed basis and would like us to take a look at your arrangement to make sure that you are attaching the correct employment status to the arrangement, please do not hesitate to get in touch.

Dismissal within probationary period

Most contracts of employment contain probationary period clauses. It is common for contracts to contain a provision that the first three or six months in employment is considered to be a probationary period.

If the employee proves satisfactory during the probationary period, the employment is confirmed. If there is still some doubt at the end of the probationary period about the employee’s suitability, the probationary period may be extended for a further period of time.

Sometimes however it is clear that a new employee is not suited to the role. This may be for a number of reasons. They may have committed an act of misconduct or it becomes clear that they do not have the skills required to undertake the role to the required level. The employee may prove to be a poor timekeeper or have an unacceptable sickness record.

So what do employers need to keep in mind if they are considering dismissing an employee in their probationary period? Firstly, employers should note that probationary periods have no special legal significance. They act simply as an internal review mechanism, providing a time-frame for assessing suitability for longer term employment. The more legally relevant issue regarding length of service is whether the employee has one years’ service (two years in GB) as, after this, the employee has the right not to be unfairly dismissed and can bring a claim to the Employment Tribunal.

Until the employee has one year’s service (or two in GB), (s)he cannot bring a simple unfair dismissal case. For this reason, many employers assume that they can simply terminate an employee’s employment during their first year’s service without explanation and without following the usual procedure of carrying out an investigation, holding a disciplinary hearing and offering the right of appeal. It is true to say that employers will usually not fall into difficulty if they let an employee go on performance or conduct grounds during their probationary period.

Therefore, employers are often understandably surprised to receive advice that, despite the fact that the employee cannot bring a simple unfair dismissal claim, there are still good reasons to follow a process before dismissing someone, even in their probationary period.

There are at least three reasons for considering undertaking a dismissal procedure when contemplating dismissing an employee during their probationary period:-

1. While employees cannot bring simple unfair dismissal cases until they have the necessary length of service, there are a number of circumstances where the employee does not need any particular length of service to bring a claim to the Tribunal. If the employee alleges that the dismissal was an act of discrimination or was because they blew the whistle on impropriety or asserted a statutory right, they can bring their claim to the Tribunal. For this reason, it makes sense to go through a process of explaining why the dismissal is being considered, providing evidence of the poor performance or conduct and confirming the reason for the dismissal in writing. A failure to do this opens the door to the employee alleging that the dismissal was for a reason that does not require a certain period of service in order to bring a claim. Having been on both sides of Tribunal cases where an employee with short service alleged that their dismissal was for a reason that did not require them to have one year’s service, we can say that it is helpful to the employer’s defence in the Tribunal if they can produce paperwork from a dismissal procedure, setting out the reasons for the dismissal, with accompanying evidence.

2. Time, effort and money has gone into recruiting and training the individual. It makes sense to take some time to make sure that it is the right decision to let the person go as further time, effort and expense will be required to recruit and train the replacement

3. As a matter of fairness, it is good practice to advise the employee that their dismissal is contemplated and give them the chance to make representations and to consider these before deciding to dismiss. The employee may say something that persuades the employee to give them another chance and, if this works out, that will be a good result for both parties.

In summary, no matter how short a time an employee has been employed, if an employer is considering terminating their employment, it is worth taking some time to go through a dismissal procedure before confirming the termination of employment.

For advice on terminating the employment of an employee during their probationary period or any other employment law / HR matter, please get in touch.

World Cup – the office sweepstake and other considerations

The World Cup kicks off tomorrow. Who will you be supporting? In most work places up and down the country, there will be people who are very interested and following as closely as they can and other people whose only interest will be in when it’s all over (15th July for those counting down the days).

So, given that it’s so topical (and because I couldn’t think of an employment law angle on the Trump/Kim summit), this month’s Mark’s Monthly takes a look at some of the things employers might want to be aware of in relation to the World Cup:-

1. The office sweepstake

An office sweepstake is quite a tradition in many workplaces for sporting occasions like the World Cup and Grand National. For some, their only interest in the World Cup is in seeing how their sweepstake team is doing. If that’s you and you drew Panama, it’s unlikely to go well for you – although there’s a reasonable chance you’ll at least get a win against England

Did you know that some office sweepstakes may be illegal? You should also note that lots of disciplinary procedures prohibit gambling in the workplace. So where does the office sweepstake fit in with that?

Fortunately for those who run an office sweepstake, most of them are likely to be on the right side of the law and disciplinary rules. Here are some rules to keep to so that you’re on the safe side:-

  • Sweepstakes can only be organised and participated in at one location, although this can be multiple buildings at the same location. If you have more than one site/location, each would need to do their own;
  • All participants have to pay the same price for a ticket.
  • Those participating cannot choose their own teams – teams must be allocated by chance, otherwise it would be illegal betting.
  • Tickets are non-transferable
  • The sweepstake can’t be ‘rolled over’ to another sweepstake.
  • The organiser can’t make any profit

Stick to those few rules and you’re unlikely to face a criminal conviction for running the office sweepstake!

2. Equality law issues

Occasionally, over-exuberant football fans have been known to sing songs or say things about the other team or referee that might not be appropriate in the workplace. Employers should remember that they will be liable for any acts of discrimination or harassment unless they can demonstrate that they have taken all reasonable steps to prevent the act of discrimination or harassment occurring.

Employers should consider reminding employees of their responsibilities if watching games together or talking about the World Cup in work.

For example, employees should be aware that any comments that might reasonably be deemed offensive on the grounds of race should be avoided and, if they occur, will lead to disciplinary action, even if the comment was made among colleagues outside the workplace. This will extend to messages sent on instant messaging applications and posts on social media.

3. Productivity issues

Employees with an interest in the World Cup might be tempted to try to follow matches during working hours. Employers need to decide what approach they intend to take in relation to this and communicate this to employees. Will you let employees follow the matches during working hours? If so, is this fair on those who have no interest? Will people who take time out to watch a match have to make up the lost time? It’s worth thinking these things through in your own context and forming a view on them before they become live issues in the workplace.

If you have any queries over this or any other employment law matter, please get in touch (preferably in the morning time before the games kick off!)

Social media and instant messaging in the workplace

We are regularly asked to advise on issues arising as a result of employees’ use of social media and instant messaging services. This month’s article outlines some of the key considerations that employers should be thinking about.

We have a half day training seminar on this very topic coming up on 22nd May. Retained clients should have their half price discount code but if you need us to send it to you, please let us know. To book in, please follow this link –

In thinking about your approach to social media use you need to consider (1) employees’ use of the organisation’s social media platforms and (2) employees’ use of their own personal social media platforms and the impact this can have in the workplace. Taking each of these in turn:-

Use of organisation’s social media platforms

Your employees may be posting on your organisation’s social media platforms for a variety of reasons – for instance to advertise job vacancies, post interesting content or market your products or services.

Only employees who require access to the organisation’s social media platforms for their work should have access to the passwords and these should not be shared with anyone who does not require access. Employers should ensure that employees are clear on what the organisation’s social media channels are to be used for and that the content posted must reflect the ethos and values of the organisation. Clearly any content of an offensive or discriminatory nature posted by an employee through the organisation’s social media account will be a serious disciplinary matter.

Employees’ use of personal social media platforms

Most of the issues that we are asked to advise on are to do with employees’ use of personal social media and instant messaging platforms (such as Twitter, Facebook and WhatsApp). Often an employee’s reaction to being challenged about their use of social media is to say that their account is “private”. It is helpful if the organisation’s social media policy spells out that, even if profiles are set to “private”, posts can still be viewed by the employee’s contacts and so anything that relates to work can be dealt with as a work issue even if it was posted on a private account. You may also wish to consider whether or not to permit employees to display their place of work on their social media accounts.

Employees should be made aware that any content that they post online should be free from discrimination or harassment. In particular, if colleagues are involved in, for instance, a WhatsApp group of work colleagues, they need to be made aware of the need to treat colleagues and speak about them with the same dignity and respect in that forum as they would in person in the workplace.

Employees should be made aware that any content that discriminates against or harasses a colleague or otherwise reflects poorly on the reputation of the organisation may be dealt with in accordance with the organisation’s disciplinary procedure.

In addition, employees should be given guidance regarding how (if at all) to interact with anyone from outside the organisation who makes comments of a negative nature about the organisation. Often people will use social media as a way of expressing a grievance or ill-feeling about an organisation and it is important that employees are given guidance regarding how to respond if they see someone posting about the organisation on social media. Often a well-meaning employee coming to the defence of the organisation can make matters worse or sometimes an employee will carelessly “like” a post that is negative about the organisation and that also reflects poorly on the employer that one of its own employees is seen to be endorsing a negative comment.

Our advice would be that employers should instruct employees that if they see any comment that appears to relate negatively to the organisation or anyone associated with it, they should not engage in any way with the comment and instead immediately inform their manager.

Employers asking employees to use personal social media platforms

Sometimes employers will want employees to make use of their personal social media platforms to support the work of the employer. While it is fine to ask employees to “like” or “share” posts from the organisation in an effort to spread the message more widely, employers cannot insist on employees using their social media channels for this purpose.

Similarly, while WhatsApp groups can be very useful for keeping in touch with employees in relation to work-related matters (particularly around rotas and arranging cover for shifts), again an employer should not insist that an employee is involved in such a group. Employees should not be required to be involved in messaging groups regarding work outside of working hours.

We will pick up on all of these issues in more detail and have the chance to explore other issues of relevance in this fast-moving area in our seminar on 22nd May. Places are limited so book in early to secure your place –

This article is intended as a guide and is for information purposes only. It is not a substitute for taking legal advice. For advice on this or anything else to do with employment law, please get in touch with us.


Things to note in 2018

Welcome to the first Mark’s Monthly of 2018.

In this article, I’m going to highlight some things to take note of in the New Year.

General Data Protection Regulations (GDPR)

The Regulations are being introduced to provide individuals with greater control over how their information is handled by organisations. There is lots for organisations to do to ensure compliance by the time of the Regulations coming into force in May.

While data protection is not an employment law matter and the reach of GDPR extends far beyond the HR function, we recognise that HR is affected by GDPR. So, we’ve partnered with an expert in the area for our first training session of the year.

On 1st February, we will be delivering a workshop on Employment Law Essentials. We’ve also invited Ken Dunlop to take part of the morning to update delegates on GDPR and help us begin to think about what we need to be doing to ensure compliance. You can sign up for the seminar here –

Employment Status

In 2017, several cases were brought by individuals, asserting that they had certain employment rights (sick pay, holiday pay, minimum wage) when the organisations they were working with were treating them as self-employed.

Employment status is likely to continue to be a big issue in 2018. Pimlico Plumbers are taking their appeal against the decision that a plumber was a worker to the Supreme Court in February. Uber may also take its case to the Court of Appeal, after having its application to “leapfrog” the Court of Appeal and take the case straight to the Supreme Court rejected.

There are numerous other cases that will be heard at a lower level.

The government is expected to address recommendations for reforms to the “gig economy” in 2018 which may bring more clarity in this area.

Gender Pay Gap and the Employment Act (NI) 2016

You may have heard on the news recently about the resignation of the BBC’s China editor, Carrie Gracie citing pay inequality with male international editors. All employers in Great Britain with over 250 employees had to publish salary figures following the introduction of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017. Employers must show whether pay disparities exist in their workforce and if they do, employers are required to publish an action plan to eliminate any gender pay differences.

In Northern Ireland, The Employment Act (NI) 2016, which provides for the making of the Gender Pay Reporting Regulations, is yet to be enacted due to the lack of an Executive at Stormont. The 2016 Act also requires the government to publish a gender pay strategy and action plan.

It is a case of “watch this space” for now in relation to this matter in Northern Ireland. If the 2016 Act is implemented this year, it will bring in some significant reforms including the system of early conciliation via the Labour Relations Agency, meaning that all Claimants must first contact the Labour Relations Agency in an effort to resolve their case before issuing Tribunal proceedings.

We’ll be keeping you up to date with changes in the law as they arise.

Finally, as always, feel free to get in touch if we can be of any assistance to you this year. We look forward to seeing as many as possible at our seminar on 1st February.