Social Housing and Care Homes – Employment Quarterly Update (May 2019)29/05/19
Welcome to our latest employment law update for social housing and care homes. The past few months have seen the launch of the EU settled status scheme amid continued uncertainty over Brexit, and the publication of the latest round of gender pay gap reports by larger employers. Non-disclosure agreements (NDAs) also remain in the spotlight, and we review the key considerations when entering into such agreements below. Finally, there have also been a number of significant decisions from the courts which will be of interest to employers in the social housing and care homes sectors.
In our February update, we covered the settled status scheme, under which EU nationals and their families will need to apply if they wish to remain in the UK post Brexit. The scheme has now opened and will remain open until 30 June 2021 (or 31 December 2020 in the event of a no deal Brexit). Capsticks is continuing to run its Brexit/settled status briefing sessions for organisations who wish to provide information/support to their EU staff. The cost of a session is £250 plus VAT or it reduces to £200 plus VAT if we run multiple sessions for your organisation.
Settlement agreements and NDAs
Confidentiality or non-disclosure agreements are commonly included in a settlement agreement, where employers will often expect employees to sign up to a confidentiality undertaking when agreeing terms to end a workplace relationship. Under the whistleblowing legislation, it has long been the case that such clauses will not prevent an individual from making a protected disclosure, for example about a breach in the law. However, NDAs are increasingly under the spotlight, as a result of the high profile #MeToo campaign, for example. Concern has been expressed that they are too frequently used to prevent disclosure of misconduct, particularly in cases of sexual harassment.
Whilst NDAs remain lawful, and employers will wish to rely on them order to protect confidential information or against reputational damage, best practice is that they should not be routinely used in settlement agreements, and each case should be considered to determine whether a confidentiality provision should be included and, if so, what the scope of those provisions should be.
Care should be taken in particular to avoid recycling old agreements or relying on out of date template agreements to ensure the NDA/confidentiality wording is appropriate. Capsticks can prepare settlement agreements bespoke to your requirements on a costs effective basis and we have ensured our confidentiality provisions, where applicable, are worded appropriately.
Gender pay gap reporting and positive action
April 2019 saw the publication deadline for the second round of annual gender pay gap reports. Whilst some progress has been made towards reducing the gender pay gap, it is clear that many employers, including in the social housing and care homes sectors, have some way to go in order to address the issue of pay inequality within their organisations. There are various tools at an employer’s disposal to tackle gender equality. One of these is positive action, which is permitted in certain circumstances, including in a recruitment context where candidates are as qualified as each other, the employer does not have a policy of treating people with a protected characteristic more favourably, and taking action is a proportionate means of achieving a legitimate aim (section 159 Equality Act 2010).
In Chief Constable of Cheshire v Furlong, the Employment Tribunal found that the employer’s policy of using a “pass/fail” assessment method, under which all candidates who passed the exercise were deemed to be “as qualified as” the others, was discriminatory. Mr Furlong, a white heterosexual male, was held to have been discriminated against on grounds of sex, race and sexual orientation, because in fact he was better qualified than some of the other candidates who were also given a pass mark.
Whilst positive action is an extremely useful tool in improving diversity within an organisation, care must be taken to use it appropriately, and not to cross into positive discrimination which is unlawful. Whilst organisations that are underrepresented by those who possess a particular protected characteristic may set recruitment targets (which may or may not be achieved), the setting of quotas is unlawful and could give rise to discrimination claims.
Working time and rest breaks
Under Regulation 12 of the Working Time Regulations 1998 (WTR), a worker is entitled to 20 minutes away from their workstation where their working day is longer than 6 hours. However, in certain special cases, where it is not possible to offer such rest breaks, workers must be allowed to take an equivalent period of compensatory rest (Reg 21). The case of Network Rail Infrastructure Ltd v Crawford, concerns the scope of the entitlement to compensatory rest.
Mr Crawford was a signalman responsible for regulating railway traffic. He was unable to take rest breaks but instead was entitled to compensatory rest. During his working day, Mr Crawford had frequent short periods of inactivity of at least 5 minutes which, in total exceeded 20 minutes. He argued that Network Rail were in breach of the WTR by not offering him an uninterrupted period of compensatory rest. The Court of Appeal found that, unlike rest breaks, there is no requirement that compensatory rest under Reg 21 has to be for an uninterrupted 20 minutes. The fact that Mr Crawford had a number of rest periods throughout the working day meant that the obligations under the WTR were complied with.
This is a useful decision for employers in the social housing and care homes sectors, where it can be difficult for workers to take their regular scheduled breaks. What was significant here was the fact that Mr Crawford did have sufficient rest throughout the day; were this not the case, it is likely that the Court of Appeal would have found differently.
In the recent case of Baldeh v Churches Housing Association, the EAT found that the housing association’s decision to dismiss Mrs Baldeh at the end of her probationary period over concerns about her performance amounted to disability-related discrimination. This was despite the fact that it was not aware of her disability at the time it took the decision to dismiss her. The employer was, or should have been, aware of her condition before it dismissed her appeal, however.
Mrs Baldeh suffered from depression and there was evidence that this condition contributed to the behaviour that led to her dismissal. Whilst depression will not always amount to a disability for the purposes of the Equality Act 2010, where employees make references to depression or to their mental health, employers should take care to consider whether the employee might have a disability and, if so, whether there are any reasonable adjustments they can make to enable the employee to remain in the workplace.
In our last update we reported on the case of Mencap v Tomlinson-Blake in which the Court of Appeal ruled that workers on sleep-in shifts are not entitled to the national minimum wage for the duration of their shift but only for the time that they are required to be awake for the purpose of carrying out a specific duty. As we reported previously, Unison had appealed the decision to the Supreme Court, and it has now been confirmed that the Supreme Court will hear the case in February 2020.