The duty of fidelity – what does that mean?

Directors will be aware of the ‘fiduciary duties’ owed by every director of a limited company to that company as a matter of law. Amongst other things, these fiduciary duties require directors to act in the best interest of their company, exercise independent judgement and avoid any conflicts of interest but what about employees? 

Employees who are not directors do not owe fiduciary duties. However, there are various other duties and obligations which are implied into every employment contract by common law whether their contact says it or not and even if there is no written contract at all. Most notably, every employee owes a ‘duty of fidelity’, which requires them (the employee) to act in good faith towards their employer. 

The duty of fidelity can leave the employee vulnerable to disciplinary proceedings (and potentially dismissal) if breached.

The obligations imposed on an employee by the duty of fidelity include the duties:

  • to act honestly towards their employer;
  • not to disrupt their employer’s business;
  • not to compete with their employer (either on behalf of another business or on their own account);
  • not to poach staff or solicit their employer’s customers and suppliers away from their employer;
  • not to misuse their employer’s property;
  • not to make a secret profit by (for example) diverting work away from their employer; and
  • to ensure that their employer’s confidential information remains confidential.

The duty of fidelity is rather broad, but the specific aspects of an employee’s duty of fidelity towards their employer will differ depending on the nature of the particular employment relationship and the seniority of the employee. 

An employer who suspects that an employee is in breach of their duty of fidelity may have grounds to discipline the employee – particularly if the employer can show that the employee is not acting honestly, or they have breached confidentiality.

If you need any more information on this topic, please do not hesitate to call us.

 


Hr professionals writing a job description

Does an employee have to disclose a disability?

Does an employee have to disclose a disability?

According to a recent study undertaken by BUPA, 43% of employees with a less visible disability haven’t disclosed it to their employer. This raises the question - do employees have to disclose disabilities, and what’s the legal position if they don’t?

There’s no specific legal obligation on employees to disclose that they have a disability. In fact, the survey found that 23% of those with a less visible disability hadn’t disclosed it because they were worried that they wouldn’t be believed, and 20% were concerned that it might impact on their career opportunities.

What is your responsibility as an employer?

Under the Equality Act 2010, if you do not know of an employee’s disability, and couldn’t reasonably be expected to know, there is no discrimination arising and no duty to make reasonable adjustments. 

In other words - you need to have actual or constructive knowledge of the employee’s disability before you can be found liable for failing to make reasonable adjustments or for discrimination relating to disability.

However, just because an employee hasn’t disclosed their disability to you, or you haven’t found out about it through other means, you may still have constructive knowledge of it.

For example, if an employee is taking a lot more time off sick or for hospital appointments, or there are changes in their behaviour at work or in their performance levels, these could all indicate that an employee may have a disability. You should then take reasonable steps to find out whether they might be disabled, rather than burying your head in the sand. 

Ways to investigate this may include, for example; holding return-to-work meetings following sickness absence, considering the reason for absence specified on their statements of fitness for work (fit notes), and seeking medical advice from the employee’s GP, or your occupational health (OH) advisors, with their consent. Although you must ultimately reach your own conclusion about whether an employee is disabled and not just unquestionably accept the opinion given by your OH advisors.

However, this is not to say that every employee who displays the above behaviours should automatically be considered disabled, and treated accordingly under the Equality Act 2010. Other times, a change in behaviour at work could simply be down to a conduct issue with the individual, which may require further action or progressing down your disciplinary procedure. 

Similarly, you don’t need to take every step possible to establish whether an employee is disabled in order to avoid having constructive knowledge of their disability.

But you do need to ensure that you establish which route is appropriate for the situation in hand, and that you have taken all reasonable steps to do so, before taking action. 

This can be a tricky area to navigate through, and each scenario is individual. If you have a situation that you are currently struggling with as an employer, please do not hesitate to get in touch so we can guide you appropriately.

 


Menopause and the Workplace

Menopause and the Workplace

Last year, the Women and Equalities Committee of the House of Commons published the report ‘Menopause and the Workplace’.  The Report made twelve recommendations to the Government, aimed at encouraging an improvement in the support and legal rights in the workplace afforded to women experiencing menopause.  The Government has now published its response to the Report and outlined its approach moving forward.

The Report, published in July 2022, made several recommendations;

  • the appointment of a Menopause Ambassador to work with businesses, unions, and other groups to give guidance to employers.
  • the production of model menopause policies to assist employers;
  • for the Government to work with a large public sector employer to develop and pilot a menopause policy;
  • legislation for flexible working to become a day-one right to all employees;
  • to implement section 14 of the Equality Act which would have the effect of introducing sex and age as a single dual protected characteristic; and
  • to launch a consultation on amending the Act to provide for menopause as an individual protected characteristic.

The Government has agreed with some, but not all, of the Report’s recommendations.

It confirms that it will appoint a ‘Menopause Employment Champion’ to work with employers and the Government to highlight best practice and how they can improve support in the workplace.  It also accepts the recommendation to make flexible working a day-one right for employees, something it has recently announced it will legislate on.

However, the Government has rejected several of the Report’s recommendations, including the implementation of a model menopause policy in the public sector (something it does not deem necessary due to current efforts to develop guidance and policies in this area).

A very important area that they did not agree with was the proposal to class menopause as a protected characteristic under the Equality Act – this has been refused. It is the opinion of the Government that it would be unworkable in practice.  The Report comments that the current protected characteristics (specifically age, sex, and disability) already provide sufficient protection against unfair treatment of employees experiencing menopause.

If you want to know more on how you can protect yourself in this area, please do get in touch.


minimum wage increase

Changes to National Minimum Wage April 2023.

Changes to National Minimum Wage April 2023

The increase in National Minimum Wage will come into effect on 1st April 2023.

Below Is the new minimum wage rate almost all workers are entitled to by law.

  • Age 23 or over: £10.42
  • Age 21 to 22 – £10.18
  • Age 18 to 20 – £7.49
  • Age 16 to 17 – £5.28
  • Apprentice – £5.28 *

*Note on Apprentices

Apprentices are entitled to the apprentice rate if they are either:
  • Aged under 19
  • Aged 19 or over and in the first year of their apprenticeship

Apprentices who are aged 19 or over are entitled to the National Minimum Wage for their age once they have completed the first year of their apprenticeship.

Example: An apprentice aged 23 would receive £5.28 per hour for the first year of their apprenticeship. When they reached the age of 24, they are entitled to receive £10.42 per hour even if they have not yet completed their apprenticeship.

Other Statutory Payments from April 2023:

  • Statutory maternity, paternity, adoption, shared parental and parental bereavement pay will increase to £172.48 per week.
  • Statutory Sick Pay - increase to £109.40 per week. (up from £99.35 per week)

Lamont Jones are here to provide you with the latest and important news regarding HR and Employment Law news. It is vital you keep up to date on governmental changes otherwise, penalties may be incurred. We are only a phone call away if you have any questions!

Download our useful free HR guides here

 


Managing Mental Health Absences

Managing Mental Health Absences

Some companies are still having a continued high absence rate due to mental health reasons.

If this is not managed correctly it can put colleagues and the service you provide under strain as well as hitting your bottom line because that employee is not contributing to the overall company plan but there could be litigation looming.

This information explains the legal background around sickness absence, what support you can give to staff and the procedures you can follow.

It is vital you follow your own internal procedures for reporting and recording sick notes without exception.

Doctors' notes should not just be filed away, what is written on them must be understood first.

There have been countless occasions where a company views a doctor's note as just a payroll matter and fails to understand what is written on the sick note. If a Doctor's note says 'work-related stress', you must get in touch with HR. Often it is a mixture of private things and work that adds to an employee's mental state.

Often such matters can be nipped in the bud and an employee returned back to the workplace providing a fully functioning role sometimes with support and possibly some adjustments. One of the actions you should undertake is a welfare meeting as part of the return-to-work interview.  

If your managers have not been trained on how to address the sensitive and tricky issue of mental health or indeed have not progressed a wellness support package before, please get in touch for guidance. 

 

 

 

 

 


Can you award individual pay rises and/or one-off payments?

Can you award individual pay rises and/or one-off payments?

The hot topic on all newsfeeds at the moment is the cost of living, strikes for more than inflation rises and general discontent, especially within public sector employees.

It may not be possible for you to award a double figure pay rises for all your team, but you may want to do ‘something’ to ease the burden and foster goodwill.

With the average wage rise being 4.7% between April and June 2022. However, the real value of pay has fallen by 3% as it’s being outpaced by high inflation. This may result in employees submitting individual pay rise requests, additional to any business-wide salary review exercises. How should you respond?

One-Off Payments

What may be affordable is a smaller than inflation pay rise plus a one-off payment to ease the current cost of living burden. This is possible and ideally you would have a provision to do this in your contract of employment. If  your contract does not have this clause then you will need to ensure that you make it clear, in writing, that this is a one-off occurrence to support them this year only and that it does not mean that this will reoccur next year. If you decide to award a one-off payment, it will have to be put through payroll and be subject to normal HMRC deductions.

Individual Pay rises

Provided you are paying your employees the applicable national minimum or national living wage rate, (or above) then pay is a contractual consideration. This means that you can generally agree with an employee what their salary is.

The Equality Act 2010 gives women (or men) a right to equal pay for equal work, by giving the right to equality in the terms of their employment contracts. Legislation makes it unlawful to offer different pay and contractual terms and conditions where women and men are doing the same or broadly similar work, work that’s been rated as equivalent or work that’s of equal value in the same or associated employment. If you grant an individual pay increase and other employees find out about it, an employee of the opposite sex who is doing broadly similar work or work of equal value to the employee you have just given a rise could claim that you’ve breached legislation. 

However, if you can show that the difference in pay is because of a material factor that doesn't amount to sex discrimination and that factor is a material difference between the two employees’ wages. If you can demonstrate, with evidence, that the pay rise awarded was because of the rewarded employee’s qualifications, skills, extra efforts, or achievements and this does not apply to the other employee, then that should be a sufficient defence. 

It won’t be enough of a justification where you’ve simply awarded a pay rise because the employee asked for it. Let us not forget that employees can also allege pay discrimination under the Equality Act 2010 based on other protected characteristics, e.g., race, age, disability, etc.

If you do award an individual pay rise, be aware that you cannot prevent employees from disclosing pay information, even if you asked the rewarded employee to keep the matter confidential.

As usual, if in doubt please give us a ring.

 

May we take this opportunity to wish all our clients a HAPPY CHRISTMAS and a Prosperous New Year


Are you allowed to monitor homeworkers?

Are you allowed to monitor homeworkers?

According to recent surveys, 60% of workers who worked from home during the pandemic maintain they are more productive. However, only 33% of business decision-makers thought that the workers in their team were more productive, and 35% believed that they were less productive when homeworking.

To what extent can you monitor homeworkers to assess productivity levels?

You can monitor homeworkers to keep track of their productivity, but you need to ensure compliance with relevant legal provisions, including the UK GDPR, the Investigatory Powers Act 2016 and the Investigatory Powers (Interception by Businesses etc., for Monitoring and Record-keeping Purposes) Regulations 2018. This means that you must:  

  • conduct a data protection impact assessment (DPIA) before introducing any new systematic monitoring activity 
  • be transparent and provide detailed information to employees about your monitoring activities 
  • have a lawful basis for processing monitoring data - “legitimate interests” is likely to be your lawful basis, i.e., the processing is necessary for the purposes of your legitimate interests. However, this can only be relied on where the employee’s interests or their fundamental rights and freedoms don’t override your interests, so make sure you first conduct this balancing test, which you can do as part of your DPIA 
  • ensure any monitoring is proportionate to what you’re trying to achieve 
  • have lawful authority to intercept any communications (phone calls, emails, etc.) covered by the Investigatory Powers Act 2016 - you can monitor or record communications without an employee’s consent in order to: establish the existence of facts; ascertain compliance with the regulatory or self-regulatory practices or procedures relevant to your business; ascertain or demonstrate the standards which are to be achieved by persons using the system in the course of their duties; prevent or detect crime; investigate or detect the unauthorised use of the system; or secure the effective operation of the system. However, you must first have made all reasonable efforts to inform employees that interception may take place 
  • strike a balance between protecting your business interests and employee privacy in the workplace.

If you need any guidance, please get in touch


Man with long covid looking unwell

Will 'Long Covid' be a Disability?

Will Long Covid be a Disability?

In a pioneering decision on the impact of post-viral fatigue syndrome, otherwise known as Long
COVID, an Employment Tribunal has held that an employee was considered to be ‘a disabled person’
for the purposes of the Equality Act 2010 due to suffering from Long COVID over a nine-month
period.

The Long Covid Case

The individual in questions was a caretaker for a charity and contracted the virus in November 2020.
After his isolation period ended the ‘normally active’ caretaker reported suffering ongoing symptoms
ranging from fatigue and exhaustion, headache, loss of appetite, and a ‘wrecked’ sleep pattern, to
joint pains in his arms, legs and shoulders. Because of this, he was unable to return to work until
August 2021, when he was dismissed. He alleged the dismissal was as a result of his long absence
and issued a claim in the ET.

His employer accepted that he had a physical impairment from November 2020 to June 2021 (when
his sick pay ended) but did not accept this after this period. The employer’s stance was that there
was limited medical evidence and, in reality, he did not want to return to work due to a team
restructure.

The employee gave the ET detailed evidence pertaining to his symptoms. He asserted that for the
nine months after his isolation terminated, he was unable to perform basic activities such as cooking
or concentrating while reading, dressing, and walking as they became too difficult for him. He
acknowledged a fluctuation in his condition, having felt some improvements at times, followed by a
recurrence of the symptoms, though fatigue and lack of sleep remained constant.

At a preliminary hearing, the ET had to decide whether he was disabled within the meaning of the
Act. The Employment Judge was satisfied that the physical impairments reported by him met the
relevant test and did indeed amount to a disability. The Judge accepted that sufferers would have
good days and bad days but that this did not discount the fact that the symptoms were long-term.
As a result, his claims for disability and age-based discrimination, in addition to his unfair dismissal
claims, will now proceed to a final tribunal hearing.

Employers must treat cases individually and look at the symptoms

This decision is one of very few which has addressed the issue of Long COVID. What is important to
note is that ‘Long COVID’ itself is not automatically a disability as the symptoms reported by Long
COVID sufferers are varied. Rather, this judgment highlights that fact that employers need to look at
those symptoms when determining whether an employee may or not be disabled for the purposes
of the act as every case will turn on its facts. Employers should adopt the usual approach of
obtaining sufficient medical evidence and making reasonable adjustments for any employee who
reports they are suffering with Long COVID as simply claiming that they suffer with it will not be
enough to satisfy the test.
If you have any such concerns, please do get in touch with us for further guidance


parent trying to work with children at home

Working Parents – School Holiday Juggling & Accrued untaken Holiday leave – what a dilemma

As we look towards another start of a school year how do you, as an employer, support working parents? Pupils and teachers may have eagerly anticipated the long summer holidays as some downtime, late-nights, and lie-ins however, the same can’t always be said for working parents. School holidays might have seemed like the perfect opportunity for parents to spend time with their children. Yet, many parents are still working professionals who have to attend important meetings, meet work deadlines, and pursue their career ambitions. This can cause unneeded pressure and stress, not to mention parents often having to take holiday time during the long break for childcare reasons and not always for relaxing reasons.

Research shows that 64% of working mothers struggle to manage school holidays as well as work responsibilities. A further 60% said that when employers deny time off requests, this negatively impacts their relationship with their children and makes them feel “like a bad parent.” It is understandable that the business has to function and not many can allow their parental workforce to be all off at once but what can you do that is fair to both parties and hopefully ensure productivity does not dip and that your work force takes the rest they need?

It is a reality that when work requests are denied or discouraged, employers are more likely to ring in sick. Sick leave can negatively impact your productivity, team morale and bottom line. This is a losing situation for both parties. This doesn’t need to be the case. There are some excellent ways employers can step up to the plate and support working parents to reduce some of the stress caused by school holidays and to the problem of accruing holidays that their workforce has been unable to take.

Entitled Leave – While school holidays can be a stressful time for parents to get days off, working parents are entitled to both paid and unpaid leave. However, this has to be requested and granted and not just taken without agreement. Holiday entitlement is a popular choice for working parents needing to take time off work to cover childcare. All employees are legally entitled to 5.6 weeks of paid leave, which unfortunately doesn’t cover the 13 weeks of school holidays plus other in-service days. Some employers give more leave than the statutory minimum which is 20 days plus 8 public holidays (In England), so you do have choices on what to do with the additional days.

Working parents have the right to take up to four weeks of unpaid leave, per child, per year. This entitlement provides working parents with up to 13 weeks’ leave but is only available for parents with children under the age of 17. Employees must give the employer 21 days’ notice if they want to use any unpaid leave. 

Flexible Working – An employee can legally request flexible working hours once they’ve  been with the company for 26 weeks. Requests are made either through a statutory request, which gives the employer a time frame of three months to grant the request or objectively justify why flexible hours cannot be granted or to come to a middle ground that works for both parties. 

There are multiple ways to support working parents during the school holidays and ways you can encourage them to take their accrued holidays. 

Flexible working is one of the best ways for employees to achieve a better work-life balance. This can be as simple as allowing employees to start work later or finish earlier so parents can be around more for their children during school holidays. Taking holiday in small bites – such as working for a period of 4 days a week etc until the holiday is used up.

There are benefits for both the employer and employee when flexible working hours are introduced, including: 

  • Happier employees & higher productivity. In a recent survey, 20% of working parents said they are “much more productive due to flexible working hours.” A further 15% added that they’re “happier” as it means they now have more family time. 
  • Increased talent. When flexible hours are offered, working parents are more likely to take a job or promotion. Only two-fifths of working parents were offered flexible working hours before or during their interview. While there’s still some room for improvement, this figure suggests that employers are starting to understand the benefits of flexible working.

Temporary remote working agreements – Another way to help accommodate working parents could be offering to do some work remotely during the summer or half-term breaks. While parents are still available for important calls and meetings, they also fulfil their duties from their own home which reduces their childcare costs significantly and the cost of commute – fostering goodwill. 

Benefits of remote working include: 

  • Less time spent commuting. Working parents usually have travel expenses, therefore having the option to work remotely helps cut employee costs. 
  • Career Advancement. Research shows that 36% of working parents would prefer to work from home and will turn down positions that don’t allow them to do so to achieve a healthier work-life balance. 

As an employer, there are multiple ways to support working parents during the school holidays as well as encouraging workers to take accrued holiday. 

  • Provide more flexibility with deadlines during the school holiday period. 
  • Avoid scheduling any diary buster meetings. 
  • Allow employees to leave work early and pick up again after the kids have gone to bed.
  • Measure employee performance by output rather than presenteeism.
  • Ask employees without children to provide additional cover. 
  • Consider alternative flexible working arrangements like compressed or term-time hours.
  • Acknowledge that working parents feel guilty, either way and be empathetic to their needs. 
  • Understanding that holiday can be ‘rolled over’ into the next holiday year (as long as the statutory amount of time off has been reached) buying back holiday (again as long as the statutory amount of time off has been taken)

Holidays not taken during the year – Employers need to keep an eye during the year on accruing holiday entitlement – often it gets to the end of the year and some employers are shocked to find that some employees have lots of holiday yet to take (and not just the ones with children).

Often all this untaken holiday cannot be factored into the remaining holiday year timeframe without causing major productivity problems – this is why it is vital that line managers monitor this closely month on month. 

Any problems please do give us a call.


Burnout: Has this increased due to home working and covid?

What is burnout?

Burnout is a form of exhaustion caused by constantly feeling swamped. It’s a result of excessive and prolonged emotional, physical, and mental stress. In many cases, burnout is related to someone’s job. Burnout happens when you’re overwhelmed, emotionally drained, and unable to keep up with life’s incessant demands.

In 2019, ‘burnout’ was recognised by the World Health Organisation (WHO) as an ‘occupational phenomenon’. As lockdowns have drastically affected our work-life balance and working environments, the public’s perceptions of burnout and the contributing factors, considering the pandemic has changed. The lines between work and home life have become increasingly blurred. Many are working longer hours, some have and still have to look after children during the working day, and for many, social interaction and social environments have changed.

Since the start of the pandemic, a recent poll was conducted asking adults about their perceptions of burnout and what they think could contribute towards it.

The results are that burnout is a state of physical and emotional exhaustion. It can occur when you experience long-term stress in your job, or when you have worked in a physically or emotionally draining role for a long time.

What are the 5 Burnout Stages?

  • Honeymoon phase. Like a honeymoon phase in a marriage, this stage comes with energy and optimism. 
  • Onset of stress phase. Eventually, the honeymoon phase dwindles, and you begin to experience stress. 
  • Chronic stress phase. 
  • Burnout phase. 
  • Habitual burnout phase.

Common signs of burnout:

  • Feeling tired or drained most of the time
  • Feeling helpless, trapped and/or defeated
  • Feeling detached/alone in the world
  • Having a cynical/negative outlook
  • Self-doubt
  • Procrastinating and taking longer to get things done
  • Feeling overwhelmed


When asked to identify the symptoms of burnout, 85% of UK adults correctly identified symptoms of burnout, while 68% mistakenly identified symptoms of anxiety.

Burnout isn’t something which goes away on its own. Rather, it can worsen unless you address the underlying issues causing it. If you ignore the signs of burnout, it could cause further harm to your physical and mental health in the future. You could also lose the ability and energy to effectively meet the demands of your job which could have knock-on effects to the other areas of your life.

As prevalent as it is, burnout is often misunderstood, stigmatised, and costly both to employees’ health and wellbeing, and employers’ productivity.

46% of UK workers feel ‘more prone to extreme levels of stress’ compared with a year while only 15% feel ‘less prone to extreme levels of stress’.

Gender and age play a role in this prevalence, with women and young people reported feeling more prone to extreme stress and pressure at work. 

Employers need to be thinking of this topic and what they can do about it. Ignoring it is not an option.