June 2022 - MLP Law

Wider range of health professionals able to grant fit notes

Gareth Matthews, Head of Employment at MLP, outlines and considers new legislation aimed at increasing the number of health care professionals able to issue fit notes.

What is a Fit Note?

A fit note is a doctor’s statement providing a statement on an employee’s fitness for work, after an employee has been absent for a certain period of time (usually 7 days). In recent years, there has been a move away from describing such documents as sick notes or sick lines – shifting the emphasis away from describing the employee’s ill health and, instead, adopting a more positive approach, focusing on what can be done to ensure the employee is ‘fit’ for work.

New Legislation for Fit Notes

The Department for Work and Pensions (DWP) has announced new legislation that will allow a wider range of healthcare professionals, like occupational therapists, physiotherapists, and pharmacists, to certify and issue ‘fit notes’. The legislation will come into force from July 2022 and applies to general practice and hospital settings across England, Scotland, and Wales.

According to the DWP, the legislation will ease pressures on doctors, whilst also simplifying the process of issuing and receiving a fit note which provides evidence to an employer regarding absence and may provide relevant advice on how to support employees to remain in or return to work.  The DWP has stated that this will allow patients to see the most relevant healthcare professional and have improved conversations about work and health.

Comment

It is clear that this move has been undertaken with the primary focus of easing the burden on the NHS. From an employer’s perspective, however, it may also assist with the benefit and management of sickness management procedures, as it will make it more difficult for employees to delay in providing fit notes (for instance, by arguing that they have not been able to obtain a GP appointment). This will augment an employer’s sickness absence procedures, allowing the employer to react quickly to absence, either by introducing supportive measures to allow the employee to return or to commence a formal capability process.

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Advising managers: how to suspend an employee

 

Our clients often ask us for practical tips on commonplace issues that occur in the workplace. One such request focuses on suspending employees at the outset of a disciplinary process for misconduct. With that in mind, Julie Sabba, an associate in the Employment team, sets out guidance on how to fairly suspend an employee, whilst minimising the risk of Employment Tribunal claims.

Introduction
A suspension is a period of time when an employee is required by their employer to abstain from their normal work. If the employee usually works at the employer’s premises, and/or out and about with customers, this means they will not attend their normal place of work during the suspension. If the employee normally works from home, it means that they will refrain from undertaking the normal tasks and duties associated with their work.
Suspension is used as a protective measure while the employer investigates allegations of serious misconduct against an employee, and the employer has reason to believe that the employee’s continued presence in the workplace or performance of duties may:

• impede the investigation into the allegations, or
• present a serious risk to the interests of the business, its customers, or other employees.

Legal Factors
In some circumstances, an employee may be able to claim their employer has breached their contract by suspending them.

The implied obligation to provide work
As long as the employee is paid, there is no general implied duty to provide work that applies in all circumstances. Rather, whether there is a right to work depends on the terms of the employment contract.

The implied duty of trust and confidence
There is an implied term in every employment contract that the employer must not enforce contractual provisions on unreasonable grounds. This means that, even if the employer has an express contractual right to suspend the employee, it must only exercise that right:
• on reasonable grounds and
• for no longer than is necessary.

Custom and practice/disciplinary policy guidance

Checking the company’s past practice (if any) on suspension is also advisable, to ensure that suspension for these kinds of allegations is normal and that, if not, there are distinguishing features about this situation which make suspension appropriate. This minimises the risk of an employee successfully arguing that the right to suspend is being used in such a way that it:

• breaches the implied duty of trust and confidence, or
• constitutes unlawful discrimination in relation to any protected characteristic

Alternatives
Alternatives to suspension should be considered, eg a temporary change in work location or duties while the investigation is carried out, or a period of leave. Care however should be taken that any changes are temporary, and could not be construed as a demotion, or in some way humiliating to the employee, to minimise the risk of the employee successfully arguing that the change is a breach by the employer of the implied duty of trust and confidence.

When is it appropriate?
Where a period of suspension with pay is considered necessary, this period should be as brief as possible and kept under review, and that it should be made clear that the suspension is not considered a disciplinary action.
Most disciplinary situations will not require suspension, and it should only be considered exceptionally if there is a serious allegation of misconduct and:

• there are reasonable grounds to believe that the employee might seek to tamper with or destroy evidence, influence witnesses and/or sway an investigation into the disciplinary allegation
• working relationships have severely broken down to the point that there is a genuine risk to other employees, property, customers or other business interests if the employee remains in the workplace, or
• the employee is the subject of criminal proceedings which may affect whether they can do their job

Practical Factors

Right to be accompanied
There is no legal right for an employee to be accompanied to a suspension meeting, however consideration should be given to allowing an employee to be accompanied if this is a reasonable adjustment for an employee with a disability.

When to suspend an employee
• During an investigation or when an allegation comes to light – It will often be necessary for an employee to be suspended as soon as an investigation has unearthed a serious matter that will be, or is likely to be, the subject of disciplinary action, even though the full investigation into that matter has not been completed. Continuing the investigation is not a flaw in the proceedings and does not render them unreasonable, provided that the employee is given a full and fair opportunity to engage with any new charges or new material which might emerge as a consequence of that process. That opportunity may be at the disciplinary hearing itself.

• Don’t be hasty – Before suspending an employee, the employer should undertake some preliminary investigations in order to establish if there is evidence to substantiate the allegations and justify the suspension. An ill-conceived or hasty suspension can result in a breach of contract claim by the employee.

• But don’t delay – Set against that, an unnecessary delay in suspending or a failure to suspend an employee, when there are allegations of gross misconduct pending against the employee, may prejudice the employer’s case if the employee is later dismissed without notice and the employee submits a claim for unfair dismissal to the employment tribunal. It can be hard to demonstrate that dismissal without notice was an appropriate disciplinary sanction if the employee was allowed to continue in the performance of their duties right up until the date of the dismissal.

Who should carry out the suspension?
In theory, anyone in the company with the employer’s authority to undertake the suspension may carry it out. In practice, the individual carrying out the suspension should have received proper training and should also be significantly senior to the employee who is to be suspended.

How to suspend an employee
It is important that the suspension is undertaken as a protective measure and is not conducted in the manner of a disciplinary sanction or in any manner likely to result in a breakdown of the mutual obligation of trust and confidence.
For this reason, suspension should always be with pay and the manner of the suspension should be carefully handled in order to minimise distress to the employee and to preserve the working relationship as best as possible.
Suspension can leave individuals feeling prejudged, demotivated and devalued. It should therefore only be used after very careful consideration.

The employer should:

• always make it very clear that suspension is not an assumption of guilt and is not considered a disciplinary sanction
• remind and reassure the individual that a fair procedure will follow in which their point of view will be listened to and fairly considered

Communication
When deciding when and how to communicate a decision about suspension, employers should bear in mind that some individuals may find it extremely distressing to be told they are suspended. It is good practice to encourage a suspended employee to access some immediate support and to offer help to do this, eg by offering to contact a colleague, friend or relative of their choosing to meet them immediately.

Maintain Confidentiality
The employer should keep the suspension confidential wherever possible. Confidentiality should be maintained regarding the details of the suspension, and information relating to it should only be provided on a ‘need-to-know’ basis.

Suspension Meeting
The person suspending the employee should convene a meeting with them. It is usually most convenient to do this just before work usually starts, or first or last thing during the working day, or over lunchtime, as the workplace is usually quietest at those times. At the meeting the person suspending the employee should explain:

• that they are to be suspended from work with immediate effect
• the reason for the suspension
• that it does not mean they think the employee is guilty
• that the suspension is not considered a disciplinary sanction
• an outline of the allegations under investigation
• the likely duration of the suspension
• the details of what they may and may not do while on suspension
• the employee’s entitlement to pay and benefits during suspension
• the possible outcomes following suspension (this is usually either reinstatement into their normal pattern of work or a requirement to attend a disciplinary hearing to discuss the allegations in more detail)
• that the details of the suspension will be confirmed in writing

If the employee works as part of a team, or is responsible for the management of other people, or in some other way their absence will impact on others, it is also good practice to agree:

• how their absence should be communicated, and
• how a temporary handover of particular responsibilities, tasks or projects should be put in place
For example, putting out a message to the team (and perhaps to relevant customers, as necessary) that states that the employee ‘has taken leave at short notice to deal with a personal matter’ can be an appropriate way to avoid the employee any embarrassment.
Throughout the suspension meeting, the person suspending should endeavour to remain calm and reassuring but at all times professional; such meetings are obviously delicate and need to be handled with great sensitivity. If the manner of the suspension is too brusque or harsh, this can contribute to a breakdown in the employment relationship, making it difficult for the employee to integrate back into the working environment if the allegations do not in fact lead to any disciplinary measures.

Once the suspension meeting is concluded, the person suspending the employee should usually accompany them while they gather any personal belongings and leave the premises. This should be undertaken as discreetly as possible, when the workplace is quiet.

In addition to communicating, as necessary, the employee’s absence, and putting in place arrangements to cover their work (as discussed above), measures may need to be put in place to restrict their access to the employer’s IT systems.

Confirm in Writing
The details of the suspension as outlined in the suspension meeting must then be confirmed in writing to the employee. This letter should emphasise that the act of suspending the employee does not in any way imply that they are guilty of any misconduct, or that any decisions have been made, but rather is a purely protective measure while the employer investigates the allegations.

• keep regular contact with the employee throughout their suspension
• name a person, such as the employee’s manager, whom they can contact if they have any concerns
• as well as encouraging the employee to access immediate support when they are told about their suspension (as mentioned above), consider the employee’s wellbeing and mental health

The length of a suspension
In most circumstances the period of suspension should be as brief as possible and kept under review. It should not exceed any maximum period that may be set out in the contract of employment or the employer’s disciplinary procedure.
In the event of an investigation being particularly complicated, it may be acceptable to extend the period of suspension (eg if during the investigation new evidence of misconduct comes to light which requires further investigation) but the reasons for any extension should be properly reviewed and documented so that the employer can justify its necessity. The employee should also be informed, in writing, of any extension to the period of suspension, and the reason(s) why the employee considers the extension necessary.
In one particular case, the fact that a suspended employee had addressed the allegations against them at a subsequent meeting, but the employer had not then lifted the suspension, was one factor that led the employment tribunal to conclude that the employer had breached the contract of employment.

An excessively long period of suspension makes it less likely that the employee will be able to integrate back into the working environment if the allegations against them do not in fact lead to any disciplinary measures.

Pay during suspension
During any period of suspension an employee must be provided with the pay and benefit entitlements to which they would have been entitled if they had not been suspended. The withholding of pay and benefits may make it more likely that the suspension will be viewed as an impermissible disciplinary sanction and could lead to accusations that the disciplinary procedure was unfair.

Record keeping requirements
Accurate written records should be maintained of:

• the reason for the suspension
• the duration of the suspension, including any reviews that were conducted in relation to it
• all communication that takes place with the employee during the period of suspension
• the outcome of the suspension
These records will be important in the event that:

• the employer later needs to defend a breach of contract claim by the employee, and/or
• the employee suffers stress as a result of the suspension and the employer needs to manage that situation
These records should be retained for as long as reasonably required (and no longer), in accordance with the employer’s data protection policy and procedures.

Challenging a suspension
An employee may seek to challenge their suspension, eg because of the effect that it may have on their work and their reputation. Employers should therefore ensure that in suspending an employee they comply with both the express terms of the particular contract and also with the implied term of trust and confidence.

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Hit the road Jack… Is it time to sell your company?

“Rising costs have created a “ticking timebomb” for UK small business owners”, the chairman of the Federation of Small Businesses (FSB) has warned, with almost half a million firms at risk of going bust within weeks without a fresh wave of government support.

“Three-quarters of small to medium sized companies are worried about the long-term impact the cost of living crisis, soaring energy bills and rising inflation will have on their business”, according to a recent Barclays’ SME Barometer.

Following COVID and Brexit and with the ongoing labour shortages, transport issues, fuel and energy price increases, interest rates rises, increased inflation and generally the increased costs of living and running a business, could this be the time to sell your company?

Scrutinise your business

Take an honest and objective look at your business. What has the last few years meant for your business? Where do things currently stand? Reappraise your business and consider the challenges, what has not been working, how you see the future of your company and how you see your industry moving forward.

Is it time to sell?

If your business is really struggling and you cannot see a way forward, or if you have decided that it is time to move on, retire, look at other opportunities or sail off into the sunset, it’s important to look at your exit plan as soon as possible.

Preparing for an Exit

1. Appoint the right team of people to look after your sale including solicitors, accountants, tax advisers and other professionals

2. Consider available tax reliefs

3. Determine the value of the Company and how much you actually need if you are looking to retire

4. Company Health Check/pre-sale due diligence – Few business owners are ready for the sale process and advance preparation, away from the strict timetable of the deal itself, can be really useful, particularly as the sellers have to continue running the business during this busy and difficult period

5. Structure of the sale – should it be a share sale or an assets sale? Please refer to our blog Buying or Selling a Business: Shares or Assets

6. Accounts / Financials – Consistent monthly management accounts may be more important to a buyer than a company’s annual audit/accounts. Your accountants can assist to determine a fair price for your business and ensuring your accounting records are up to date

7. Isolate any investment assets from the business

8. Lock in and incentivise your key employees

MLP Law can help and advise you on your exit plans and preparing for a sale. Please speak to our Corporate Team on 0161 926 9969 or email us at corporate@mlplaw.co.uk.

Employee Ownership Trust – Is it an option for you and your business?

With the news that Carlton Bingo becomes the latest well known company to become employee owned, is it an option to consider for you and your business?

Employee Ownership Trusts (EOTs) are an established mechanism aimed to promote employee ownership by giving business owners the opportunity to sell their shares to an employee owned trust free from capital gains tax.

In summary, a company seeking to transition a controlling (more than 50 percent) ownership to an EOT can consider three methods:

Indirect employee ownership – the employees do not own shares in their employer company directly, they are beneficiaries of the trust which owns the controlling shareholding. This method of ownership is suited to businesses with higher staff turnover and a larger number of employees who desire tax-efficient profit-share.

Direct employee ownership – the employees directly own shares, typically in conjunction with a statutory tax advantaged share plan over shares in the ultimate parent company.

Hybrid Model – This is a combination of trust ownership and employee direct share ownership. Typically, retiring vendors sell their share interests to the EOT when it is first established and then over time some of this interest is transferred to employees. The hybrid model suits businesses where the emerging new managers desire a real ownership stake in the business but there is a desire by original founders to preserve independent control of the business.

Why set up an EOT?

  • Allows an exit where there is no obvious third party purchaser.
  • Can provide a quick and streamlined exit route for shareholders.
  • Allows a tax free disposal by UK individual shareholders.
  • Owner can retain some involvement (up to 49%).
  • Share capital still available to incentivise management and key employees.
  • Aligns the goals of stakeholders and employees.
  • Improved employee retention and morale.
  • Encourages innovation at all levels.
  • Improved business performance by driving growth of stakeholder values.
  • Employee ownership encourages employee engagement

Tax benefits:

  • Owner: Disposals into the trust can be made free from capital gains tax and inheritance tax.
  • Employee: The EOT can pay annual bonuses of up to £3,600 to employees free of income tax.
  • Company: A corporation tax deduction for the value of the bonuses will be available to the company.

For a copy of our guide, please email leanner@mlplaw.co.uk. If you wish to speak to our experts at MLP Law for more information and professional guidance please contact our employment and business teams on corporate@mlplaw.co.uk

Manchester Law Firm, MLP Law Unveil New Brand Identity

Northwest based, MLP Law has unveiled a new Brand Identity to position them as legal leaders in supporting Business Owners & Directors.

A new modernised company logo, identity and communications will now be rolled out across digital platforms, print and working environments.

Following discussions with its partners, the firm identified the need to refresh and refine the overall brand and messaging to communicate to the regions SME’s and organisations.

MLP Law’s Managing Partner, Stephen Attree explained,

“We wanted to develop our brand to fully embody who we are, and what we do.

We’re quite different to other law firms in the fact that we are experts in assisting businesses from starting up, scaling up, or looking to exit, whilst also considering matters outside of the office, like creating wills, advising on trusts and inheritance planning.

Our legal experts aren’t just corporate lawyers.”

Whilst the firm’s ethos and values support and understand client requirements for reactive legal services, it has become increasingly important to help plan, protect and proactively assist.

The purpose of the rebrand is to clearly communicate and reinforce the proactive nature of the firm and the importance of building client relationships with business owners across the region.

At the heart of the rebrand remains the existing strapline line ‘Successful outcomes for you and your business’, which is felt that it’s just as valued today as it has been in the past.  It recognises that many clients rely on us to support them not just in business, but also personal matters too.

“At MLP Law we see business, and individual’s personal lives as a journey, explains Stephen.

Over many years, along with our legal expertise, we have devised frameworks and models to help businesses grow and individuals to feel protected.

Importance of the firm’s uniqueness in its DNA and approach in legal support will be at the forefront of all communications.

Let this be the start of the firms next chapter, building on successes and remaining one of the leading corporate and commercial law firms in the Northwest.”

What is MLP Doing for the Community?

You may have heard about our new Charity of the Year, and we wanted to tell you a little bit more about some of our aims and objectives within the community for this exciting year ahead.

First off, we are aiming on offsetting our carbon footprint. We are aware of the dangers of global warming and we would like to do our part in reducing that risk. We have made small changes in and around our offices, which will lead to a much larger positive impact. We have changed all paper used in the office to eco-friendly and are reducing the amount we use and print. We have hybrid working in place for our colleagues, which helps us reduce the carbon emissions from their cars driving to and from the office and we are enforcing the switch off, of unnecessary lights and electrical items in our office to reduce the amount of wasted energy.

For those who visit Altrincham you may have also noticed we now have a planter on Stamford New Road outside of Altrincham Interchange and opposite Pure Gym, which too is, helping us offset our carbon footprint and make a change.

Next, we are aiming to give one company with a local community focus or interest, free legal assistance in the areas of commercial, corporate or employment law and will select a specialist to work closely with you dependant on your requirements.

We will announce whom we have chosen the first week of June 2022. If you would like to be considered please call us on 0161 926 9969 or alternatively email us on ameliad@mlplaw.co.uk.

Finally, we have officially picked our charity of the year who are close within our community. This year we gave our colleagues the chance to decide. During the year we will be doing events to raise money for our charity and for those that have visited our offices for meetings, they may have noticed our colleagues in casual attire on a Thursday, and this is just one of the ways we are aiming to raise money for our charity. We are asking our colleagues to dress down on a Thursday and bring a donation in for us to put towards our charity of the year.

We are also encouraging our colleagues to raise money for our charities by running the Manchester Marathon in April 2023 whether this be a relay or full marathon.

In MLP, we enjoy seeing the positive affect we have on the environment and our communities by making changes and helping those around us. This is just a small percentage of what our team has planned for this year ahead and they are working hard to ensure we are always doing the right thing.

We would love to hear your suggestions on what changes and help MLP can have to our community and the environment. If you happen to have any, email us on katied@mlplaw.co.uk or alternatively call 0161 926 9969.

Menstrual Health in the Workplace

The government is planning to develop a Women’s Health Strategy for England, having recently launched a survey which is looking at menstrual health alongside other female health issues.  Although it is unlikely to impose legal rules on employers in the short to medium term, a number of UK charities are calling for increased protection for women in relation to female health issues.  Indeed, the UK is not alone in reviewing the laws in this area, with Spain introducing legislation to give women suffering from severe period pain, three days’ medical leave each month, paid for by the government. This could be extended to five days in appropriate cases.

 

So, what should employers make of this issue?

 

Period Pain

Most women suffer mild symptoms during their period, which can usually be dealt with by over the counter medication.  In some cases, however, women have medical conditions such as adenomyosis, endometriosis, fibroids and pelvic inflammatory disease and can suffer from excruciating pain and heavy periods.  Moreover, many women find the effects of the menopause can result in various health issues, such as anxiety/depression, brain fog or urinary tract infections.

 

The Equality Act 2010

Period pain and the menopause are not specifically protected under the Equality Act 2010.  If, however, an employee is treated unfairly because of these conditions, it may amount to discrimination under the protected characteristics of sex, disability or age.

 

In terms of disability, the legal test is whether an individual has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.  If an employee can demonstrate that she has a disability in the legal sense due to her period or the menopause, her employer is under a duty to make reasonable adjustments. This might include adjusting triggers in any absence management policies.

 

As this topic receives more publicity, we may see women with debilitating period pain and associated symptoms or problematic menopausal symptoms taking action at work, as we all become more comfortable discussing the issue.  Furthermore, even if menstrual symptoms aren’t serious enough to amount to a disability, they may still impact on staff performance.

 

Many businesses are therefore realising that women need particular support regarding their periods and the menopause and want to be proactive in managing the issue.

 

What steps should employers take?

Employers should make it clear that periods and the associated pain are not a taboo topic and should be talked about in the same way that people discuss other health problems.

 

  1. Be reasonable

Extreme symptoms related to periods or the menopause may cause female employees to phone in sick.  They may complain of stomach ache or other general symptoms rather than expressly referring to menstrual problems.  It may therefore be useful, before triggering your formal absence management policy, to have a sensitive conversation to find out if there is an underlying reason for their regular absence (or even irregular absence as not all women have periods on a fixed cycle or experience the same levels of pain each month).  If it is related to their periods, consider making some adjustments to the trigger points in the policy and/or allowing women to work more flexibly during this time, where that is possible.

 

  1. Be flexible

Periods affect women in different ways and to different degrees.  Some women may need immediate access to a toilet because of a heavy flow, to a hot water bottle or over the counter medication to sooth cramps.

 

Are there any changes you can make to support staff to continue to work rather than phone in sick?  It may be that they can work at home, or make up their hours at some other time.  This won’t be possible for all jobs but it might be worth thinking ahead about how you might be able to accommodate flexible working for a few days each month.

 

  1. Be supportive

Try and be supportive, rather than judgemental.  Don’t bring your own experience into the discussion or that of your female relatives.  Find out what you can do to help.

 

Policies

By having a specific policy in place or tailoring existing policies, such as sickness absence and equality policies, your business makes it clear that it is aware of menstrual health and female related health issues.  This can help to remove the common prejudices and embarrassment that relate to this topic, enhancing the work environment for female employees.  Such an approach is likely to have a positive impact on staff morale and sickness absence rates, whilst reducing your risk of costly discrimination claims.

 

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

MLP’s Charity of the Year 2022

Here at MLP Law we pride ourselves in doing the right thing for our communities. One of the most important aspects of that ethic is that each year, staff choose a nominated charity to raise funds for over the next 12 months. This year, the MLP family have chosen Headway, the Brain Injury Association as their charity of choice for 2022, to raise much-needed funds for the important work that Headway does in our community.

Headway is a nationwide brain injury charity that works with individuals who have suffered a brain injury. They provide vital support and information services, including a Freephone telephone line, a comprehensive and award winning website together with an emergency fund to assist people with the financial implications of having a brain injury, plus an award winning range of booklets and publications to help inform people about brain injuries.

Brain injury can challenge every aspect of your life and the losses can be both severe and permanent. We never think that a brain injury will happen to us, but each year, 350,000 people are admitted to hospital with a brain injury. When that happens, Headway is here to help.

MLP are proud to be supporting the vital of work of Headway this year, and staff together with their families will be undertaking a number of different events throughout the year to raise funds for Headway.

As part of the 2022 fundraising initiative for Headway, MLP staff have ‘Dress Down Thursday’, where staff can attend the office in more casual attire than usual, and pay a donation towards Headway. Staff can of course also participate in this if working at home, and contribute accordingly.

MLP staff are also planning to run in the 2023 Manchester Marathon, either individually or as a relay team, to raise sponsorship funds for Headway. A variety of other events are planned throughout the year, in order to ensure that Headway receives a generous donation at the conclusion of the year.

MLP Law are committed to a comprehensive and diverse corporate social responsibility scheme and supporting charity is an important way to give back and contribute towards our community and to assist those in need of help following serious illness such as brain injury.

We would love to hear your suggestions on what changes and help MLP can have to our community or any suggestions as to fund raising initiatives. If you happen to have any, email us on katied@mlplaw.co.uk or alternatively call 0161 926 9969.