Leanne Roberts, Author at MLP Law

Shortlisted for the Greater Manchester Business Awards 2022

We’re absolutely delighted to have been shortlisted in the Greater Manchester Business Awards under the Health and Wellbeing of Employees category.

The award is for the business who champions and makes the health and wellbeing of their employees a top priority, and here at MLP Law, our people are the beating heart of our business.

We’ve always made it our priority to ensure that our team is happy, healthy and supported, and therefore whilst we already believe we are a great place to work, having the regional acknowledgement would be fantastic, and something that would mean a great deal to us all.

Happiness of the team is paramount at MLP Law: happy employees are good employees and we actively invest in making sure our team is happy, healthy and has all the resources and support they need to do their job well and also enjoy work/ life balance.

Just a selection of the things that we do for our team include:

  • Flexible hours and working patterns;
  • Rewards and benefits such as gym memberships and additional holidays; and
  • Employee assistance programmes and mental health support.

But above all we focus on ensuring our colleagues have a supportive environment in which to realise their potential and fulfil their career aspirations.

We want all our colleagues to see their long-term future with MLP Law and we know that this means we need not only provide an enjoyable workplace, but also inspiring and motivational surroundings.

Winning the award will be a brilliant recognition for the whole team, and for all that we have all worked towards. We all invest in making MLP Law a great place to work, and it would be a great accolade for the whole MLP Law family.

The winner will be announced in early September, so watch this space!

Wellness in the Workplace

Mental health apps, menopause support, mindfulness sessions, gym subsidies, counselling helplines … workplaces are increasingly focussed on the welfare of their employees, notes Julie Sabba, an associate in Employment.

The celebration of dog ownership in the workplace is also having a moment. ‘Bring Your Dog to Work’ Day, which fell in June and has been going for over 20 years. Employers are giving dog owners adoption and bereavement leave, paying for pet insurance and encouraging employees to bring dogs into work. This is all being done as research shows that dogs reduce stress and promote sociability and exercise, thereby having a positive impact on employee wellbeing.

Why are employers so focussed on the wellness of their employees? Employer awareness of the mental health challenges and the wellbeing of employees has undergone a revolution since the onset of the pandemic, whilst multiple lockdowns and the advent of working from home and hybrid working has changed employee attitudes to work forever. Many employees now want the option to work at home, and many have ditched one career for another or retired early. Meanwhile, employers face difficulties in retention and recruitment. It’s clear something needs to change.

Last month a trial started, to consider whether it is possible to earn 100 percent of your salary for a four day week on the basis your productivity is not reduced. The 6 month trial, involving 70 companies and more than 3000 employees, includes a whole spectrum of businesses, from banks to fish and chip shops.

Researchers will consider the effect on employees’ health, happiness, productivity, and use of fossil fuels, the latter because researchers will also look at the effect on the environment of a reduced working week.

In the meantime, however, and before you start planning 4 day weeks and long weekends, considering ways to support your employees’ wellbeing at work can have many benefits, including a positive impact on morale and improved attendance.

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.

Part-Time Workers Rights

Gareth Matthews, Head of Employment, summarises the rights that part-time workers and employees have under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

In essence, when compared to a full-time worker, part-time workers must receive comparable – and where relevant – pro rata:

• Wages
• Career, training, promotion, career breaks and job transfer opportunities
• Holiday, sickness, maternity, paternity, adoption and shared parental leave
• Pension and benefits
• Redundancy selection and pay

If a part-time worker or employee considers they are treated unfavourably in comparison to a comparable worker or employee who is full-time, they can ask the employer for a written statement of reasons for the less favourable treatment. The employer must provide the statement within 21 days. If the employer fails to provide the statement, this could count against them in the employment tribunal.

The worker or employee can make a claim to the employment tribunal if they can find no objective justification within the employer’s reasons for their less favourable treatment.

In some circumstances, part-time workers may have the right to bring, under the Equality Act 2010 (EqA 2010), a claim for indirect discrimination, or an equality of terms claim, in relation to less favourable treatment they have experienced due to their part-time status. Furthermore, claims can also be brought if part-time workers consider that they have been victimised or dismissed for pursuing rights under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

In the case of workers, they can make a claim to the employment tribunal for part-time worker detriment, whilst employees can make a claim to the employment tribunal, even if they have not been employed for a full two years.

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.

Early Conciliation: How to Avoid the Employment Tribunal

The obvious route to avoid a hearing in the Employment Tribunal is for employees and employers to discuss workplace issues as they arise and to resolve them before they become disputes. However, if informal workplace conversations or more formal approaches, such as following a grievance procedure, don’t work, employers can find themselves facing a claim in the Employment Tribunal. Gareth Matthews, Head of Employment at MLP, therefore asks how best to avoid the claim being heard, in public, in the Employment Tribunal.

When can ACAS early conciliation be used?

Before commencing a claim in the Employment Tribunal the employee must inform ACAS, taking account of the strict time limits that apply at every stage. ACAS will then offer the employee what is known as “early conciliation” (to distinguish it from “conciliation”, also offered by ACAS but available once the employment tribunal claim is underway). If the employee wants to pursue early conciliation, ACAS will contact the employer and see if employer is prepared to take part too.

The process is not only one that can be instigated by an employee, as an employer can contact ACAS for early conciliation if they believe a dispute with an employee could lead to an Employment Tribunal.

If either party doesn’t want to go ahead with early conciliation, or if it’s not possible to reach an agreement, ACAS will issue a certificate which the employee will need to lodge with their Employment Tribunal claim, if they decide this is the course they want to take.

What is ACAS early conciliation?

So what is ACAS early conciliation? Early conciliation is a free and swift method of settling a workplace dispute, thereby preventing a costly and time consuming claim in the Employment Tribunal.

How does early conciliation work? 

The employee will provide the ACAS conciliator with a full account of the issues as the employee sees it, for example the amount of wages they believe they are owed or the circumstances of their dismissal. The ACAS conciliator is impartial and does not give advice but helps both parties to identify the issues and to reach an agreement.

Emotional Support

ACAS has also recently highlighted the emotional toll workplace disputes can have on employees and is now collaborating with Mind and the NHS to offer support to those that need it, when using its conciliation service.

Getting an agreement by early conciliation

Agreement reached in early conciliation is recorded in an ACAS document called a COT3, which is legally binding and similar to a settlement agreement. Another attractive aspect of the COT3 is that it can address issues that the Employment Tribunal cannot order, such as the provision of a reference.

If no agreement is reached, however, it is up to the employee to make their claim to the Employment Tribunal within the relevant time limits.

As is the case with Employment Tribunal settlements, if an employer fails to make a payment to an employee under a COT3, ACAS can help with their Fast Track Scheme.

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

Can it Ever be Too Hot to Work?

As the Met Office has issued a rare amber weather extreme heat warning for most of England and half of Wales from Sunday 17 July 2022, Julie Sabba, an associate in Employment at MLP, considers employer’s obligations, in relation to reasonable working temperatures. Temperatures are already in the high 20s/early 30s and are predicted to rise to over 35 degrees in the South-East. Unless your workplace has air conditioning, these sorts of temperatures will make working sticky and unpleasant.

An amber warning is only given where weather conditions are likely to cause adverse health effects leading to potential serious illness or danger to life. A Met spokesperson said that ‘substantial changes in working practices and daily routines (are) likely to be required’ over the next week or so.

Regulation 7 of the Workplace (Health, Safety and Welfare) Regulations 1992, requires employers to ensure that the temperature in their workplaces is ‘reasonable’. Contrary to popular opinion, there are no legal minimum or maximum working temperatures.

So, what does ‘reasonable’ mean?

Guidance issued by the Health and Safety Executive (HSE) suggests that temperatures should be ‘at least’ 16°C’ or 13°C if much of the work involves rigorous physical effort, but it doesn’t set a limit on maximum temperatures. This is because certain workplaces (glass works, launderettes, bakeries etc) will always be far hotter than most other workplaces. But it states that even where staff are working in very hot environments, they can still work safely ‘provided appropriate controls are present’.

What’s reasonable will therefore vary from workplace to workplace and the HSE recommend that you take steps to assess and combat any risks associated with working in high temperatures, such as:

• ensuring staff have access to plenty of drinking water;
• providing sun tan lotion to staff working outdoors; and
• giving staff the opportunity to have breaks in cooler areas of the workplace (with air conditioning if possible).

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.

Religion and belief in the workplace

Julie Sabba, an associate in the Employment Team, comments on the decision in the recent case of Maya Forstater, which focused on what constitutes a belief, capable of protection under The Equality Act 2010.

Gender Critical Beliefs Protected by Law

Having spawned the hashtag #IstandwithMaya (most famously tweeted by J.K. Rowling) – the case of Maya Forstater has resulted in a landmark judgment. The London Employment Tribunal’s recent decision protects employees against discrimination for holding and expressing ‘gender critical’ beliefs—that sex is a material reality and should not be conflated with gender identity. Julie Sabba, an associate in the Employment team, considers the case and its wider implications for employers. (Maya Forstater v CGD Europe and others)

Facts
Maya Forstater was a research fellow for CGD Europe, an American thinktank, who lost her job in 2019 following a series of tweets made on her personal account, essentially challenging changes to the Gender Recognition Act 2004. Indeed, CGD decided not to offer Ms Forstater full employment or renew her Visiting Fellowship because of her gender critical beliefs. This prompted her to lodge a claim for discrimination, stating that she had suffered a detriment on the grounds that she held a protected belief; namely, that a person cannot change their biological sex.

Amongst various tweets, Ms Forstater stated, “A man’s internal feeling that he is a woman has no basis in material reality”, together with “What I am so surprised at is that smart people I admire, … are tying themselves in knots to avoid saying the truth that men cannot change into women (because that might hurt mens feelings).”.

Ms Forstater turned to crowd-funding to pay her legal fees, with J.K. Rowling expressing her support, tweeting “Dress however you please. Call yourself whatever you like. Sleep with any consenting adult who’ll have you. Live your best life in peace and security. But force women out of their jobs for stating that sex is real? #IstandwithMaya”.

Law
The Equality Act 2010 prevents discrimination on the grounds of religion or belief. A ‘belief’ means any religious or philosophical belief, and any reference to ‘belief’ also refers to a lack of belief.

At a preliminary hearing, a Judge originally held that Ms Forstater’s belief was not capable of protection, as her conviction that there are two sexes, and that people cannot change sex, was “not worthy of respect in a democratic society” and that, as a result, those who shared such beliefs were not protected against discrimination. This, however, was overturned on appeal and the Ms Forstater’s case went on to be considered in full by an Employment Tribunal.

Decision
In arriving at its decision the Tribunal rejected CGD’s argument that they had made these decisions not because of Ms Forstater’s beliefs, but rather because she had expressed those beliefs on Twitter in an unacceptable way, which could have caused offence. Finding in Ms Forstater’s favour, the Tribunal did not accept the argument that a distinction could be drawn between publicising her belief in an unacceptable way and the belief itself. The Tribunal rejected this, making clear, among other things, that:

• To express gender critical beliefs to the effect that transwomen are not women, or that a trans person’s internal feeling about their gender identity has no basis in material reality, is not inherently unreasonable or inappropriate, even if some people are offended by such statements;

• When engaging in debate on a matter of public interest, such as sex and gender, it is also not objectively unreasonable to express support for material that uses the tools of political campaigning or advertising to enhance its message, or to engage on social media in ways that (provided it is not taken too far) involve mocking or satirising the opposing view: such is ‘common currency of debate’ in a democratic society;

• Ms Forstater’s engagement in the current public debate on issues of sex and gender was within those boundaries and could not therefore be separated from her beliefs themselves; and

• The respondents’ decisions not to offer her employment and not to renew her Visiting Fellowship were taken because of her beliefs and the legitimate way in which she had expressed them when engaging in that debate, and therefore amounted to direct belief discrimination.

Comment
This case serves as a useful reminder for employers that in a democratic society, tolerance of not only a variety of views is important, but also those that may not be considered palatable by some. Furthermore, the religion and belief provisions of the Equality Act 2010 offer protection to employees and workers not only to hold any lawful beliefs but also to engage in public debate about them. Employers cannot dictate which beliefs they will allow their employees to hold or express. Where employers do seek to limit or censure employees for expressing particular beliefs, they will need to be able to demonstrate a clear justification for doing so, which is properly separable from the belief or its legitimate expression in a democratic society.

As always, having clear and easily accessible policies on diversity and appropriate conduct at work are essential, to ensure employees treat each other with respect and to manage risk from the employer’s point of view.

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 closes ‘John Lewis’ style NHS deal

Altrincham-headquartered MLP Law has advised an NHS GP practice on a transition deal to incorporate the practice to a limited status while simultaneously making it an employee-owned business – the first time an individual GP practice has moved to this model in the UK.

MLP worked alongside the Employee Ownership Trust and NHS Somerset to develop the deal, which sees the Minehead Medical Centre in Somerset become an employee-owned entity, the first deal of this kind in the UK. MLP acted for the transferee company and the ongoing GP shareholders.

The deal safeguards the future of general practice in the town of Minehead by changing the business model, passing risk from the GPs themselves to the incorporated company – which should support GP recruitment efforts in the area.

Stephen Attree, managing partner of MLP Law, said: “This was an exciting and innovative deal which represents a new way of thinking within the NHS. By taking proven models such as employee ownership and applying them to a public sector body, NHS Somerset and Minehead Medical Centre have made history in their area and created a modern approach to GP services that will protect the provision of NHS services in the Minehead area.

“The deal involved a number of parties working closely together to bring this complicated case to a successful close,” he added.

Ed Ford, the GP who has led the development of the employee-owned trust at Minehead Medical Centre said: “We have a fantastic management team and wider staff team, so partners at the practice felt we should give them more control of the business. We also wanted to ensure that the business structure shouldn’t rely on individuals holding shares that could be difficult to transfer if people wanted to leave – hence the idea of becoming an employee-owned trust (EOT).

“EOTs offers GP practices an alternative, more flexible operational model; offering staff a greater say in how GP practices are run and opportunities for the team to develop their careers by having a greater leadership role, without needing to have the funds to invest as a partner.”

The plans were debated at NHS Somerset’s primary care commissioning meeting in June, and received a unanimous approval from the board, ahead of the deal completion. The value of the deal has not been disclosed.

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.