Employers have a responsibility to look after the wellbeing of their employees and should do everything they can to prevent sexual harassment happening in the first place. Damning statistics show there is still work to do – a recent report by HR consultancy firm Randstad found that nearly three-quarters of women in the construction, education, healthcare and technology sectors have encountered or witnessed inappropriate comments or behaviour by their male colleagues.
Employers can limit claims by communicating and promoting a culture of zero tolerance towards sexual harassment. In practice, this involves dealing with complaints quickly, effectively and sensitively, making it clear that perpetrators of harassment will be sanctioned and that those who report it will be protected from victimisation.
Other measures include providing anti-harassment training, identifying areas of risk, and putting effective reporting mechanisms in place. An effective anti-harassment policy will explain exactly what is considered unacceptable conduct, how employees can safely report to management, the complaints process, and support available. All this sends a strong signal that sexual harassment will not be tolerated.
Long term sickness
The issue of long-term sickness has never been more topical, with the Office for National Statistics reporting this October that more than one million people in the UK have long Covid at least one year after they were first infected.
Employers will want to approach this HR headache with caution. Options to explore and exhaust include considering whether the employee is disabled and whether reasonable adjustments could facilitate a return to work, invariably with the assistance of occupational health advice.
If the only tenable option remaining is dismissal, care must be taken to avoid claims for unfair dismissal and disability discrimination.
The necessary steps in the formal precursor to a fair ‘capability’ dismissal will be two or three formal meetings in which a variety of issues will be discussed and documented, including:
the current medical position with supporting medical evidence;
whether the employee is unlikely to return to his/her current role in the foreseeable future;
whether alternative roles are available or could reasonably be created.
Employers should throughout the process consider and discuss all alternatives to dismissal, explore any help and advice from external agencies such as the Access to Work Scheme, and consider the availability of permanent health insurance cover and early ill health retirement.
How long an employer will be expected to keep the employee's job open is a sensitive question based on the factual context. The Employment Appeal Tribunal has indicated, in Monmouthshire County Council v Harris, that it will look to factors such as the availability of temporary cover, the associated costs, the size of the employer’s business, and whether the employee has exhausted their sick pay.
New annual leave rules for part year staff
This autumn, employers are grappling with the consequences of the Supreme Court decision in Harper Trust v Brazel. Employers have commonly calculated holiday accrual at the rate of 12.07% for workers with irregular hours, and paid holiday accrued at the worker’s standard hourly rate. This approach has been upended by Brazel.
The court ruled that holiday must be calculated as set out in the Working Time Regulations 1998. This requires employers to look at the last 52 weeks of paid work (up to a total of the last 104 weeks) before any period of holiday is taken, arrive at an average weekly wage figure, and pay this average for the relevant holiday period, and employees should be entitled to take the full 5.6 weeks annual leave as required by statute. This method of calculating holiday can result in significantly higher holiday pay liability.
This ruling potentially impacts term-time only workers (as was the case in Brazel) many zero hours workers, and annualised hours workers. Examples include bank staff, substitute teachers and agency workers. Those not affected include full time employees, part time employees with fixed weekly hours working the full year, contractors, and freelancers.
Claims for underpaid holiday can be made by workers going back two years. Employers who are concerned about this liability should consider their options with the benefit of legal advice.
Louise Attrup is a partner and Eleanor Parkes a solicitor in the employment team at Debenhams Ottaway, the law firm.