New ACAS guidance published
ACAS provides a number of useful services such as advice, training and conciliation for employers and employees to help prevent or resolve workplace problems. It also has extensive guidance and resources on its website and has recently published some new and updated guidance on a number of topical issues.
Guidance on Religion and Belief
In May 2018 ACAS published updated guidance on Religion or belief discrimination setting out a number of key points that should be considered in the workplace. The guidance offers employers advice on how to comply with the Equality Act 2010 and encourages employers to make sure their workplaces are "inclusive". It highlights a number of specific areas where religion or belief discrimination is most likely to take place.
- The first of these is in the recruitment context. The guidance sets out a number of ways in which employers can avoid discrimination when recruiting, detailing areas where employers must tread with care, for example, when advertising, interviewing, using social media and shortlisting candidates after interviews.
- The second area addressed by ACAS relates to employees taking annual leave or breaks away from work for religious reasons. The guidance states that employers should consider requests "carefully and sympathetically, be reasonable and flexible where possible and discuss the request and explore any concerns with the employee". Similarly the guidance notes that employees should be "reasonable, flexible and sympathetic" in taking into account the needs of the organisation employing them in making a request.
- The final area highlighted where discrimination is most likely to take place is dress codes and appearance in the workplace. Guidance in this area includes the employer consulting with staff and recognised trade unions from the start when drafting policies and looking to be flexible and reasonable where possible. It notes that if the policy does include appearance restrictions or requirements there must be a good business reason which is "proportionate, appropriate and necessary".
ACAS has also put together a helpful factsheet aiming to reduce the risk of religion or belief discrimination happening in the workplace - "Ten considerations for employers". This notes that in many cases employers unintentionally discriminate because they are unfamiliar with the law.
ACAS has published new guidance on suspending employees from work. The guidance sets out that there are only three scenarios in which an employer should consider suspension from work, namely:
- A serious allegation of misconduct.
- Medical grounds to suspend.
- A workplace risk to an employee who is a new or expectant mother.
The guidance makes clear that suspension should not be used as a disciplinary sanction and that it should not be an automatic approach for an employer when dealing with a disciplinary matter.
The guidance outlines the duty on the employer to ensure the health and safety of its employees and highlights the fact that in certain circumstances health professionals may recommend an individual is unfit to work. The guidance notes that before suspending the worker on medical grounds the employer should consider whether there can be a temporary adjustment to working conditions or whether an offer of alternative employment could be made.
An employer must consider any specific workplace risks in their general risk assessment for an employee who is of childbearing age, is pregnant, has given birth in the last six months or is breastfeeding. If the risk cannot be removed the employer must temporarily adjust working conditions and or working hours and if that is not possible offer suitable alternative work. If neither of these options is feasible the guidance recommends that the employer suspends the employee from work on paid leave until their maternity leave begins or it is safe for them to return to work.
Helpfully, the guidance contains general information about how an employee should be suspended, how long the suspension should last, communication during a suspension and information on ending a suspension. There is also some information for employees who believe that their suspension has been handled unfairly.
ACAS has published online guidance for employers on overtime after its helpline revealed that at least one in four calls about agency workers to the ACAS helpline concern employees not being paid properly. The guidance does what it can to help employers navigate the complicated web of case law in this area and highlights the important of setting out the details of any overtime in contracts of employment and/or staff handbooks. It considers guaranteed, non-guaranteed and voluntary overtime and stresses the importance of keeping detailed records of how much overtime the individual has worked and any time off in lieu the individual may have taken. The guidance also notes the impact of overtime on holiday pay calculations. However, given the complicated nature and fact specific case law in this area it is not surprising that ACAS ends its guidance note by noting that all court decisions are case specific and suggesting employers may want to take legal advice on their obligations.
And finally … An LGBT action plan
On 3 July 2018 the Government published an LGBT action plan "Improving the lives of lesbian, gay, bisexual and transgender people." The Government has pledged £4.5 million of funding to deliver the plan which includes over 70 commitments, one of which is appointing a national adviser to reduce inequality for LGBT people. The plan is published alongside the largest national survey of LGBT people ever undertaken which had over 108,000 respondents and shows that LGBT people are experiencing prejudice on a daily basis. The Government Equalities Office notes that the ground breaking plan will tackle some of the biggest issues facing LGBT people of different ages in the UK today. Ruth Hunt, chief executive of Stonewall said "we're really pleased that the Government is listening to the thousands upon thousands of LGBT people who responded to this survey".