In the case of Ms C C McKenzie v University Hospitals of Leicester NHS Trust, a Leicester tribunal has found that Ms McKenzie was unfairly dismissed and discriminated against.

The hearing took place before Employment Judge Ahmed.

Ms McKenzie commenced employment with the Trust in 2010 and in 2015 was promoted to Deputy Sister. The tribunal was told that since starting her employment she had been absent for almost 300 days, mainly due to migraines.

Around the same time - 2010 - Ms McKenzie began caring for her grandmother, who suffered from dementia. This affected her own health, resulting in stress and anxiety, causing the migraines to increase in their frequency. A later occupational health report in 2017 confirmed that providing care for her grandmother was the main cause of stress suffered by Ms McKenzie and was likely to be contributing to the increased frequency in the migraines that she already suffered from.

In November 2013 and September 2014 Ms McKenzie received written warnings for having had more absences of sickness than her target allowed. Fresh absence targets for attendance were set and were met in 2015.

However, in 2017 Ms McKenzie received another written warning after breaking her absence targets again - and in 2018, Ms McKenzie went on long-term sickness absence until early in 2019, which resulted in her receiving a final written warning.

At a meeting with her employers, further targets were set for her absences and the final warning was to stay on McKenzie’s file for 24 months. She was prescribed anti-depressants which she later - without medical advice - decided to discontinue taking. She then went on long-term sick leave from December 2019 to March 2020 for anxiety and depression. A report from occupational health then recommended Ms McKenzie should return to work for three months, followed by a redeployment if this was unsuccessful. The tribunal noted this was not acted upon by her employers.

Ms McKenzie was then absent again for sinusitis - although she thought that she had contracted Covid - meaning that her absence should not have counted towards her targets - and a later antibody test showed she did have antibodies for the virus.

Ms McKenzie told the tribunal that she believed the type of PPE that she was wearing affected the frequency of her headaches and having to wear a mask continuously throughout her 12-hour shift left her with inadequate opportunities to hydrate - which also affected her migraines.

In May 2020, Ms McKenzie attended a sickness absence hearing in which she was dismissed. In the dismissal letter it was written,

“Having considered all the information presented, I concluded that your sickness absence levels continue to be unacceptable and are impacting the ward and your team causing, difficulties for your area.

I therefore advised you that the Trust was left with no alternative but to serve you notice to terminate your employment on the grounds of ill-health capability.”

Judge Ahmed said the letter showed that “the dismissal was, if not wholly then at least partly, due to the claimant not achieving attendance targets and/or because of her sickness record. We are therefore satisfied that the reason for her dismissal was ‘for something arising’ from her disabilities.”

A hearing to decide compensation will be set for a later date.

Claire Teeney - Chief People Officer at University Hospitals of Leicester NHS Trust - said:

“We will use the findings of the tribunal to improve our processes and to consider how we can better support our colleagues in the future.”

Writing in his new book ‘Go Big’, Ed Miliband states that the current paternity and maternity leave system encourages a “men at work, women at home” culture.

In his book, the Shadow Business Secretary has written about policy ideas he says could transform UK society and advocates for a “reordering” of responsibilities that gives men the option of spending more time caring for children, without financial penalty. Miliband states research that suggests paternity leave has long-term effects on the quality of father-child relationships and that men who take leave when a child is born develop a closer relationship with their child.

He says:

“Our ambition should be to build a world where men engage equally in the caring that has historically been done by women, and in so doing reorder the values of work, family and love so that work does not always come first.”

He adds:

“If we get this right, everyone can contribute to economic success and acquire more choice about how they balance work and family life. It could be the start of a remaking of the social contract between women and men and between work and family life.”

Michael Lewkowicz, spokesperson for the charity Families Need Fathers, said:

“We fully support an extension of paid paternity leave. We believe both parents matter in children’s lives and research evidence supports this. Our policies are out of date and don’t support the best interests of children or families in general.”

Currently men only receive two weeks’ paid paternity leave at a flat rate of £150 a week, meaning that most families can’t afford for the new fathers to take time off. Miliband believes that this existing policy encourages fathers to take only a “brief paternal pit stop”.

Caroline Nugent, HRD at Financial Ombudsman Services, said:

“Having more paid time off is really something we need to consider and a number of employers, like mine, try to support by paying more than the statutory minimum.”

Miliband is calling for paternity leave that lasts at least twelve weeks which he feels would also benefit women in the workplace and help narrow the gender pay gap – shown to be attributed in part to childcare.

He writes:

“We would start to break free from a culture which loads so much on to women, penalises them for having children, constrains them in a particular stereotype.”

A trial - lasting for six months and beginning on 6th June - is being led by 4 Day Week Global, who are campaigning for a shorter working week with no loss of wages.

More than sixty UK companies with over three thousand workers, will take part in a six-month co-ordinated trial of a four-day working week as part of a global pilot programme.

A range of employers have pledged to pay workers 100 per cent wages for 80 per cent of time - provided that the workers commit to 100 per cent productivity. They are joining hundreds of employers and thousands of employees taking part in global trials in Ireland, America, Canada, Australia, New Zealand and Israel during 2022.

This trial is based on the 100-80-100 model, pioneered by co-founders Andrew Barnes and Charlotte Lockhart in the landmark Perpetual Guardian trial which took place in New Zealand in 2018.

Academics from Oxford and Cambridge Universities - together with the think tank Autonomy and Boston College in the US - will be monitoring the trial.

It is hoped that the UK pilot will provide the evidence and data which clearly demonstrates the feasibility and desirability of a four-day work week across a broad range of industries.

Last year, research by HR software company Factorial identified the four-day week as the most desirable employee benefit.

Joe O’Connor - Chief Executive of 4 Day Week Global - said:

“The UK is at the crest of a wave of global momentum behind the four-day week. As we emerge from the pandemic, more and more companies are recognising that the new frontier for competition is quality of life and that reduced-hour, output-focused working is the vehicle to give them a competitive edge. The impact of the ‘great resignation’ is now proving that workers from a diverse range of industries can produce better outcomes while working shorter and smarter.”

Ed Siegel - Chief Executive of Charity Bank - said his organisation had long been a champion of flexible working, stating:

“…. but the pandemic really moved the goalposts in this regard. For Charity Bank, the move to a four-day week seems a natural next step.

The 20th-century concept of a five-day working week is no longer the best fit for 21st-century business. We firmly believe that a four-day week with no change to salary or benefits will create a happier workforce and will have an equally positive impact on business productivity, customer experience and our social mission.”

Molly Johnson-Jones - Founder of flexible working consultancy Flexa Careers - said:

“This comes just as the debate between advocates for traditional ways of working and staff rebelling against office returns is really heating up, meaning the timing couldn’t be more perfect. In the same way that presenteeism doesn’t equate to productivity - despite what some politicians and business leaders would have us believe - nor do working very specific, fixed hours have a positive bearing on output. The trial should prove this unequivocally and put this debate to bed.”

An HR assistant - Miss L Musguin - was found to have been unfairly denied a pay rise because she was intending to take maternity leave in four months’ time.

Employment Judge Alison Russell heard the case which Miss Musguin brought against her employer - Breyer Group Plc - at the East London Hearing Centre.

The tribunal heard that Miss Musguin commenced her employment as an HR advisor in July 2017 and was awarded an increase in salary in January 2018 - bringing it to £30,000 for a 40-hour week.

From June 2019 until August 2020, Miss Musguin was on maternity leave with her first child. Just prior to her return to work, The Head of Human Resources - Ms Dyer - left Breyer Group Plc, creating a vacancy for her position. Miss Musguin was contacted and asked if she was interested in applying for the position, which she declined to do. The position was filled by Mr Rayat, who had been the Recruitment Manager.

In June 2020. whilst Miss Musguin was on her first maternity leave her junior, an HR coordinator, also went on maternity leave. That position was filled by a recruit, who was employed on a fixed term contract and offered £27,000 per year - which was ultimately raised to £28,000 per year in order to fill the vacancy. Later, on becoming a permanent position, this was decreased to £27,000.

Miss Musguin found it unfair that there was only a £3,000 difference between her salary as an HR assistant and the more junior role - telling the tribunal that it undervalued her work and her experience.  She discussed this with the Head of HR, Mr Rayat, and he agreed to make a case for a raise in her salary at his next meeting. Miss Musguin gave Mr Rayat permission to share - at the meeting - the fact that she was pregnant.

At the weekly HR meeting with the Finance Director, Mr Fisher and Managing Director, Mr Breyer, the request was put forward by Mr Rayat. Mr Fisher denied it was because Miss Musguin was due to commence a period of maternity leave and would only be in the business for another four months, that a pay rise was not feasible.

Miss Musguin informed the tribunal that Mr Rayat had told her of the outcome and the reason for the decision, telling her that as they were friends and he respected her, he did not want to lie to her. The tribunal accepted this evidence as it was confirmed by messages sent and received between Ms Dyer and Miss Musguin.

After the meeting, Mr Rayat created a new business proposal in which Miss Musguin would receive an increase of £2,000 from 1 September 2020 provided she assumed additional responsibilities. This would justify the increase and create a greater difference in salary between her position and that of her junior.

The tribunal stated that there was nothing improper in this approach and nor was it in any way related to her pregnancy or intention to take maternity leave.

Miss Musguin, however, did not agree that the difference in pay reflected the value of her greater experience and skills. She then went on sick leave, producing a certificate stating that she was suffering from work-related stress in pregnancy and submitted a grievance which she took to tribunal.

Judge Russell found that the refusal of a pay rise was unfavourable treatment and an act of overt discrimination. 

She said:

“Even if she was not entitled to a pay rise, the refusal to exercise discretion in favour of giving a pay rise because of impending maternity leave is clearly unfavourable.”

The award of the tribunal was £9,000 for injury to feelings, with interest calculated from 24 August 2020.

The other claims of unlawful discrimination, unauthorised deduction of wages and/or breach of contract in respect of company sick pay and unfair dismissal were all dismissed.

Samantha Dickinson - Equality and Diversity Partner at Mayo Wynne Baxter - said:

“Most employers would not take such a stance or, if they did, their legal advisors would… persuade them to resolve the matter before it comes in front of a judge.”

She added:

“The clear message here to employers - aside from the obvious which is don’t discriminate - is to keep written records of meetings and decisions.”

A recent survey by GoodShape – the Wellbeing and Performance Experts – of 750 managers, HR professionals and C-suite executives found that HR was under-represented in FTSE 100 boardrooms.

Of the 80 FTSE 100 companies that publish their leadership team on their corporate website, only 40 have an HR Director at all - and just 31 had a Chief People Officer or equivalent.

On the main board, only 3 companies have an HR professional.

Dorothy Day - Chief People Officer at GoodShape - commented that the lack of representation at board level by HR professionals leads to the personal side of managing employees being forgotten by businesses.

She said:

“Boards often view employees as ‘cost and capital’ not as people. This profit over people sentiment is hard to change. Especially, when there are few people leaders on boards."

She added:

"UK businesses need to move away from token wellbeing gestures. They need to drive tangible change and improve corporate culture. To do that, the people function needs to be given proper representation on the board.”

Alun Baker – CEO of GoodShape – made the suggestion that companies often take people for granted.

He said:

“For too long, employees have lacked the same attention that businesses give to their equipment, vehicles, or buildings. It’s time to level up, and authenticity is key. Wellbeing washing will only jeopardise an organisation’s talent pool and future performance.

Organisations need to shift away from prioritising financial leadership over people leadership. It’s an antiquated view that focusing on profit rather than people will lead to a healthier company."

Liz Sebag-Montefiore - Director and co-founder of HR consultancy 10eighty - said that HR professionals looking for a position at board level should be better at selling their department to other members of the board.

She spoke to HR magazine, saying:

"An experienced, senior HR professional looking to achieve a seat on the board must demonstrate and articulate how their department adds real, identifiable and quantifiable value to the bottom line.

It is not that HR don’t have the commercial credibility but, too often, they don’t appreciate the importance of sharp end commercial experience and so sell themselves short.

There is an immense amount of talent in the HR profession and HR directors who could make a real impact in the boardroom by ensuring that the organisation’s key asset, their employees, are taken into account in board level decision-making. HR would bring a much-needed perspective in the current environment when we are trying to achieve the new normal."

Despite there currently being no legal mandate in the UK for employees to get the Covid-19 vaccine, research has found that more than one in five employers have plans to implement a ‘no jab, no job’ policy.

A recent poll of 1,074 senior decision makers, conducted by YouGov for Acas, showed that 22 per cent of employers wanted to make the vaccination against Covid-19 a condition of employment for new employees - and 21 per cent wanted to make it mandatory for existing workers.

However, experts have advised companies to get legal advice before bringing in these mandates, as they risk leading to claims of discrimination.

Susan Clews - Chief Executive of Acas - emphasised that it was a good idea for employers to get legal advice before bringing in a vaccine policy, as mandatory vaccines was a “very tricky area of employment law.”

She stated:

“Most workplaces are starting to navigate what working life should look like post-pandemic and it is clear from our poll that most employers have no plans to require staff to be vaccinated.”

She added:

“……it is always best to support staff to get the vaccine rather than insisting that they get it, and it’s a good idea for employers to get legal advice before bringing in a vaccine policy.”

Jules Quinn - Employment Partner at King & Spalding - endorsed this, advising that mandatory vaccine policies could lead to accusations of discrimination, stating:

“Individuals with underlying health conditions, pregnant workers and members of the BAME community are among the groups likely to be disproportionately affected by any vaccine mandate and could seek to claim indirect discrimination as a result. It will then be a question, on a case-by case basis, as to whether the employer has a legitimate aim in insisting on vaccination and can that aim be achieved by more proportionate means which have less of an impact on candidates and employees.”

The poll found that 52 per cent of decision makers said they did not intend to introduce a vaccine mandate for new staff and 55 per cent said the same for existing staff.  Just over a fifth - 21 per cent - said they did not know or were not sure if a mandate would be introduced for new staff, with 19 per cent saying the same for existing staff.   

Of those polled, 4 per cent and 5 per cent said they did not want to say whether vaccination would become mandatory for new or existing staff, respectively.

Richard Fox - Senior Employment Lawyer at Kingsley Napley - suspected that fewer employers would have supported a mandatory vaccination policy if they had been asked about their plans for staff vaccinations at the beginning of the pandemic because of the potential legal ramifications and risk of discrimination claims.

He added:

“Because of the ravages of the pandemic and potentially, as a result of developments elsewhere and in the UK, it seems some employers are now adopting a less cautious approach to this issue. It may be that employers in certain sectors, and those with operations in other jurisdictions where mandatory vaccination policies are more common than in the UK, may feel compulsory vaccines for staff are a wise precaution for the future. Bill Gates for one is predicting another coronavirus wave, albeit a different variant but probably more transmissible and more fatal than Covid-19.”

Richard Fox then said that employers considering a mandatory jab policy should be aware of the risk of discrimination claims and added:

“The government has chosen to push decision making on this issue back down to employers, and so it is for employers to consider how they would justify a policy of compulsory vaccination if they were challenged. It is going to be very interesting to see how the tribunals will deal with these cases.”

A steady fall in new Covid-19 cases has been witnessed since the beginning of May.

A survey of 2,100 UK employees, conducted by Visier - a recognised global leader in people analytics - revealed that more than half of the number of people considering leaving their present employment, do so because of their boss.

The survey found that 43 per cent of workers - at some point in their career - have left their job because of their manager and 53 per cent of those polled who are considering leaving their jobs, are also wanting to change their jobs for the same reason.

Experts are warning of the clear cost of poor management - stating that the first requirement of companies is to appoint the correct manager.

Anthony Painter - Policy Director at the Chartered Management Institute - stated that good management was a professional skill needing knowledge and practice. He warned that employers who did not address their management deficits would ultimately pay a big price - commenting:

“The business cost of bad management is abundantly clear, yet too many employers simply do not take this seriously and harm their collective performance and employee wellbeing as a result.”

The research found that 47 per cent of employees cited the most common characteristics of good managers as treating employees well, listening to them and showing respect to all staff, whilst 85 per cent - the vast majority - stated that a good manager was very important for happiness in the workplace. Just under 40 per cent would have remained in their role longer than they intended if they had had a good manager.

Of the respondents polled, 62 per cent stated that they presently have a good manager; 45 per cent were of the opinion that they could do the job better themselves and only 48 per cent said that they felt comfortable talking about their personal life with their manager.

On the other hand, 49 per cent of respondents stated that failure to listen was an attribute of a bad manager, followed by being unapproachable cited by 47 per cent; treating members of the team differently 43 per cent and shouting at the team named by 42 per cent.

Daniel Mason - Vice President EMEA at Visier - said that the pandemic had starved the opportunity for managers and team members to interact in person - advising employers:

“This isn’t a case of leaders becoming bad managers overnight. Managers should look to enhance their toolkit with data and insights to better understand and anticipate employee needs.”

According to SME insurer Superscript, complacent attitudes amongst employees is putting UK businesses at risk.

A survey was undertaken of 1,500 UK employees where it was found that 40 per cent feel that upholding cybersecurity best practice is not their responsibility.

Despite 53 per cent of respondents stating that they rely on the measures put in place by their employers, 34 per cent are unaware of what these preventative measures consist of - whilst 45 per cent are unconcerned about a cyber-attack because they feel that their company should ensure that they have insurance to cover all eventualities.

Cameron Shearer - Co-Founder and CEO at Superscript - commented:

"A digital presence is a necessity for all modern businesses. This opens up new risks, and with the widespread adoption of hybrid working, cyber-attacks are sadly becoming more prevalent. It is important that businesses approach protection with a full 360° view. As a first step, businesses should be educating employees about the collective responsibility to cybersecurity and instil good habits. This is just as important as ensuring they have protective systems in place in case they are attacked, and insurance in place in case of a successful attack.”

Despite the adoption of more advanced cyber-security methods, 21 per cent of employees still believe passwords to be the most secure measure; 29 per cent prefer passwords due the ease of use and 40 per cent regarded multi-factor security as an inconvenience.

Common bad password habits identified by the study were found to be secure and strong workplace passwords changed to a weaker but more memorable one that does not meet best practice – by 34 per cent of workers; 31 per cent shared workplace passwords with colleagues and friends; use of only two or three different passwords at work by 30 per cent and use of only one password at work by 15 per cent of workers. In addition, 12 per cent admitted to not changing their password after being notified that it had been compromised.

Jamie Akhtar - CEO and Co-Founder of CyberSmart - said:

“We have certainly seen an increased awareness among businesses, particularly SMEs, with regard to cybersecurity in the last couple of years. While encouraging, the next step requires us to make the transition from knowing ‘what to do’ to ‘how to do it’ and getting those best practices embedded into company culture. Now more than ever, businesses need to take a holistic approach to cybersecurity. It is no longer enough to rely solely on basic password practices. Rather, businesses and their employees must take on board other measures from regular security awareness training and implementing MFA, to updating software as well as adopting cyber insurance.”

According to employment experts, tribunals in which employees alleged they were discriminated against for being neurodiverse rose by a third last year.

Research from employment law firm Fox & Partners showed that in 2021 there were 93 tribunals where employees alleged being discriminated against for their neurodiverse condition - up from 70 in 2020. 

Neurodiversity is a term that covers - in addition to ADHD and autism - conditions such as dyslexia and dyspraxia and is thought to affect about one in seven people in the UK.

The number of autism diagnoses increased 787 per cent over the last 20 years, whilst prescriptions for medication to treat ADHD rose by 800 per cent - according to studies by the University of Exeter and the British Pharmacological Society.

The study by Fox & Partners showed a 40 per cent increase in autism; 31 per cent increase in Asperger’s and 14 per cent in dyslexia claims in the last year.

Ivor Adair - Partner at Fox & Partners - said:

“The jump in tribunal claims shows that employers can’t afford to ignore neurodiversity issues. Employees are increasingly willing to disclose they are neurodivergent and aren’t afraid to request reasonable adjustments if their workplace setup places them at a disadvantage, or challenge discriminatory treatment.

Employers would be advised to stop making assumptions, work to identify the talents of neurotypicals and understand how they can give their organisation a competitive edge as part of a diverse team.”

Texthelp - a literacy, accessibility and dyslexia software developer for employees and students with reading and writing difficulties - also conducted research, finding that only 28 per cent of HR professionals felt confident in identifying the different types of neurodivergent conditions, with just 9 per cent describing themselves as not confident at all.

Cathy Donnelly - Chief People Officer at Texthelp - spoke to HR magazine saying:

“Often people don’t feel comfortable admitting to employers that they have a neurodivergent condition. Employers should clearly signal that their organisation welcomes neurodiverse individuals through job descriptions and recruitment materials. If candidates know they are entering a workplace that embraces inclusion they are more likely to feel comfortable to talk about any extra support they may need.”

Of the 291 HR professionals polled, 33 per cent believed they knew what accommodations could be provided for neurodivergent employees.

Methods already instituted by 53 per cent, include giving dyslexic candidates more time for reading and writing tasks in the recruitment stage; 54 per cent have installed specialised software and 55 per cent have provided special keyboards.

Dan Harris - CEO of charity Neurodiversity in Business - stated:

“In some respects, we should view the data presented here as being indicative that businesses are employing more neurodivergent talent and that these employees are increasingly self-disclosing their conditions to employers. The real change will come when employees truly feel that they can bring their authentic selves to work, and businesses in turn realise how best to support them deliver their best possible outcome for their employer."

He added:

"All parties should ensure that they fully understand the nature of the employee’s neurodivergent condition and implement appropriate adjustments to the process to ensure that the employee can fully engage and best represent their position; this really needs an individualised approach given the diversity present across the neurodiversity spectrum.”

In a standard year, there are eight Bank Holidays in England and Wales: New Year’s Day, Good Friday, Easter Monday, Early May Bank Holiday, Spring Bank Holiday, Summer Bank Holiday, Christmas Day and Boxing Day.

However, this year on Friday 3rd June there will be an extra Bank Holiday to mark The Queen’s Platinum Jubilee - and the late May Bank Holiday has been moved from 30th May to 2nd June to make a four day weekend. Many employees will therefore be asking whether they are entitled to this extra days’ holiday.

This will actually depend on the wording of their employment contract, as employees do not have an automatic right to paid time off on a Bank Holiday.

If their employment contract states that the employee's annual holiday entitlement is a certain number of days plus any Bank Holidays, then they will be eligible for the additional day off.

However, if their employment contract states that an employee’s annual holiday entitlement includes eight Bank Holidays – then lists them – or states they are entitled to usual or standard Bank Holidays, the employee will not be eligible for an additional day of leave.

Likewise, if a contract is for a certain number of days leave with no mention of Bank Holidays, then there is no contractual entitlement to paid time off.

Where employees do not have a contractual right to paid time off on the extra Bank Holiday, HR experts believe that employers should consider allowing this day off anyway - or providing time off in lieu - as a gesture of goodwill to enhance employee relations. Nonetheless if the day off is not to be given, then it would be a good idea to forewarn employees as early as possible of this.