In this month's employment law news, Employment Partner, Ashley Norman focusses on key aspects of the NHS Employers response to the 'Freedom to Speak Up' report.  Ashley also looks at other whistleblowing developments, plus employment tribunal news, the latest on holiday pay and a reminder from the EAT about the trigger for collective consultation obligations. Finally, we have a 'save the date' for our next Workforce Forum.

NHS Employers' response to 'Freedom to Speak Up'

NHS Employers has published its full response to Sir Robert Francis' 'Freedom to Speak Up' report.  The report was commissioned following on from the 2013 Francis Report on the Mid Staffordshire Hospital and looked at creating an open and honest reporting culture within the NHS, with a particular focus on whistleblowing.

Please click here for our summary of the key aspects of the Freedom to Speak Up report.

Please click here for our 'Meeting Francis?' knowledge sharing micro-site, where we have gathered together our briefings on the 2013 Francis Report and guidance on its practical implementation. 

NHS Employers' full response to the Freedom to Speak Up Report can be downloaded here. As an organisation which represents employers across the NHS, NHS Employers notes that much work has been achieved in recent years around systems, policies, process and organisational development and this needs to be supported to continue. To that end, the following points were highlighted in the response.

  • The focus should be on staff experience because it is about a way of working and not a single initiative.
  • NHS Employers emphasise the need for a greater focus on handling concerns and not simply on raising them.
  • Rather than appoint external investigators, it is thought that there should be a pool of internal investigators available across an organisation. 
  • NHS Employers recommends that more investment should go into training managers about how to deal appropriately with concerns and how to keep an open culture rather investing in training individuals on how to raise concerns (which NHS Employers feel they largely already know). 
  • In relation to the key issue of settlement agreements, the response highlights that the advice in the Freedom to Speak Up report is in line with NHS Employers guidance published in 2013/14. Under Principle 13 of the report ('transparency') it was suggested that the TDA and Monitor should consider whether their role of reviewing such settlement agreements should be delegated to the Independent National Officer (INO); however, NHS Employers have stated that this adds another layer into an already lengthy process.
  • There is some disagreement over how the 'Freedom to Speak Up Guardian' role (proposed at 7.2 of the Freedom to Speak Up report) should work in practice.  The NHS Employers response suggests a possible approach to the role on page 8 of the response: working with a range of individuals, including NHS leaders, to define the overall expected outcomes.

Blowing the whistle - new 'prescribed persons'

The Department of Business, Innovation and Skills (BIS) has this month updated its list of 'prescribed persons and bodies' to whom individuals can make a protected disclosure.  The other criteria for a 'qualifying disclosure' remain unchanged, i.e. the concern raised must be in the public interest and, in the reasonable belief of the worker, tend to show that one of following has occurred, is occurring, or is likely to occur: a criminal offence, breach of any legal obligation, a miscarriage of justice, a danger to health and safety or damage to the environment.

Tribunal news

The terms of reference for the promised review of tribunal fees have now been announced and confirm that the review is looking at whether fees:

  1. have helped with the funding of the tribunal service
  2. assist with promoting settlement; and
  3. will consider whether fees maintain access to justice.

The review is also looking at other factors relevant to the functioning of employment tribunal cases, such as the economy more generally and changes to employment law.

The terms of reference suggest that, when the review publishes later this year, recommendations may include changes to the structure and level of tribunal fees, including recommendations for streamlining procedures to reduce costs.

Separately, the Ministry of Justice has published its latest statistics on employment tribunal claims, and levels of usage are down to 25% fewer 'single' claims compared to same time period last year. 

The Court of Appeal has now heard the appeal against the Judicial Review of the decision to introduce fees.  However, no decision is expected until this Autumn.

Holiday pay – the saga continues…

In the latest (but not the last) instalment of the holiday pay saga, the Northern Irish Court of Appeal has held, in a case called Patterson v Castlereagh Borough Council, that there is nothing in principle to prevent voluntary overtime from counting towards holiday pay. The question of voluntary overtime was not dealt with in the recent landmark holiday pay case of Bear Scotland v Fulton but commentators had thought that the direction of travel has been towards the inclusion of voluntary overtime which is worked on a sufficiently regular basis.  That view has now been endorsed by the Northern Irish Court of Appeal, but there are a number of provisos to consider

  • the Northern Irish Court of Appeal did not provide any guidance on when voluntary overtime should be included in holiday pay
  • instead, the Court said that this question must be considered on the particular facts of each individual case, and sent the matter back to the tribunal to consider this question
  • as this is a decision of the Northern Irish Court of Appeal, it is not legally binding on English and Welsh employment tribunals, but it will be highly persuasive
  • we may know more about when voluntary overtime should be included in holiday pay when Patterson is heard by the employment tribunal, although the Northern Irish Court of Appeal has suggested that it is very fact specific.  

In the meantime, you may wish to conduct of audit of the extent to which your workers undertake regular voluntary overtime and, consequently, your potential exposure to claims.

We are regularly advising clients on the ramifications of  the Bear Scotland v Fulton case and subsequent holiday pay decisions that have been published this year, so please do get in touch if you require any advice or assistance .

Redundancy triggers & 'special circumstances'

The Employment Appeal Tribunal (EAT) provided a reminder, this month, that the obligation to begin collective consultation is triggered when an employer makes a decision to close a workplace, even if the decision is provisional and contingent on whether there is an upturn in business.  In E Ivor Hughes Educational Foundation v Morris, a school decided in February 2013 that it would probably close because of inadequate numbers of students; but the final decision was delayed until April 2013, pending confirmation of pupil numbers for the following academic year.

The school did not collectively consult with employees in relation to the proposed redundancies, and a 'protective award' of 90 days' pay per employee was awarded. The EAT noted that there was a "fixed, clear albeit provisional intention" to close the school in February 2013, or that it was a "strategic decision on changes" which would compel the school to contemplate or plan for collective redundancies.  Either way, the duty to consult arose on that date.  Furthermore, the school's desire to keep the possible closure confidential in order to maintain confidence in the school did not amount to 'special circumstances', allowing the school to avoid its consultation obligations; moreover, the tribunal described these circumstances as 'routine' when a business closure is possible.

Save the date!

Our next Workforce Forum will take place on 10 October 2015 at our London office, where we will be building on our strategic workforce discussions.  Please keep an eye on the events page of our website for further details nearer the time. 

Our Workforce Forum is an interactive employment discussion forum for Directors of Human Resources and Organisational Development, focusing on strategic workforce issues and are by invitation only.  If you would like more information please contact Jodie Sinclair.

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