Scott Alexander, Head of Learning and Development at Legal Island, discusses your Northern Ireland employment law questions and topical HR issues with Seamus McGranaghan and Hannah McGrath from the employment team at O'Reilly Stewart Solicitors.

Topics covered in this month's webinar include:

• Company Vehicles and Tracking Devices
• Working Time and Employment Status re Hermes Deal
• Shift Start Times
• Confidential Counselling Service
• Recruitment and Selection

Don’t forget to visit the ‘Seamus Says – Employment Law Discussion’ section on the employment law hub, which provides answers to over 130 employment-related questions addressed throughout this webinar series.

Log in to watch the recording and read the full transcription.

Transcript

Scott: Good morning, everybody. This is Scott Alexander. I'm from Legal-Island. Welcome to the "Ask Seamus and Hannah". We've got Seamus McGranaghan and Hannah McGrath from the employment team at O'Reilly Stewart ready to answer your questions that have been sent either to me at scott@legal-island.com or have come through the little chat box that you'll see on your screen or indeed have been forwarded to the website. We've got a few questions this week through the website as well.

This is Claire's last webinar for Legal-Island. She's leaving the team at L&D and going off to be in-house counsel at Coca-Cola. We will be joined next time by Rolanda Markey of the LRA who's joining Legal-Island. We also have Lynsey Rainey from the L&D department as well working on the technical stuff.

Company Vehicles

Q: Can a company introduce GPS tracking of employees who have personal use of company vehicles without having an agreed policy in place?

So, we will crack on and deal with the first question, which we're going to look at. It's GPS and tracking systems. So, the question that came in here was, "Can a company introduce a vehicle management system, i.e. a GPS tracking, of its employees who have personal use of their company vehicles without having an agreed policy in place? How long can information gathered by GPS trackers be stored for?"

Seamus: Okay. So, we have two aspects to the question, one about the introduction of a vehicle management system and the second is more looking at the information that's gathered and looking at maybe the data protection under GDPR implications of that.

So, just looking at the first aspect here, can you introduce a vehicle management system, lots of my clients that work in logistics or work in some sort of aspect where they're doing deliveries or even if there is a sales role to the job do have GPS trackers on the vehicles.

It appears from the question in these circumstances that the company at present doesn't have a GPS tracker and they're looking to introduce it. I think the first fundamental point is that you need to have a good and genuine commercial reason for introduction of a GPS system on vehicles.

And the second is that if you're going to introduce it that you are taking an open and transparent process in relation to that. There's a clear policy and procedure and you're really consulting with your employees to say, "We're introducing a GPS tracking system on the vehicle, and here are the reasons as to why we need to do this".

If they're using the car for personal use or the vehicle for personal use, there may be questions that will arise in their mind. "Well, I can understand why you might want to track the vehicle while I'm at work, but I'm unhappy about you tracking the vehicle outside of work". And that could be a very legitimate concern, particularly in this day and age where we're already living with the increased rights under GDPR and certainly people's familiarity of the regulations.

Scott: This would be covered by data protection. You could identify living individuals through this GPS device.

Seamus: I think it falls within the definition, absolutely. I mean, you're able, I understand, from the GPS that you can locate the position of the vehicle, during a working day where it is. That can be very helpful for employers to know exactly where the vehicle is at any one time. If there is another collection to be done, they can look at the wider scheme and say, "This vehicle is close to that area and we can appoint them to go there and take care of the job that needs done".

On a personal level, it also means that the employer could potentially look at the records on a Monday morning and see where the vehicle has been over the weekend, which is personal information belonging to the employee.

So, I think you need to make sure that if you are introducing a GPS that it is done and it's open and transparent. Employees are aware what's available.

I do know that some of the new technology now, there's a switch or an off button that you can make for the GPS. Once that's done, you're into your personal time.

But in relation to those records themselves, that might be retained. Sometimes in my experience what could happen is that the employer could be looking at something innocently enough to do with work and then they'll realise, "Look at all the use this vehicle has had at the weekend that's beyond what our policy and procedure says". You're falling into the realms then of, "Are we looking at that on a business basis or on a personal basis?"

In any event, there will be data taken by the company or by the employer in terms of it. I think it's back to the old adage . . . in terms of the question, it's, "How long can we retain the information for?" You're looking back to, well, you can retain it for as long as necessary to retain it. After that, you should be moving to destroy it.

Scott: That's, again, a requirement from the data protection act, that you keep data no longer than it's required. But how long it might be required might be depending on, "Has there been a crash? Has there been an incident? Has there been an attempted robbery?" or whatever happens.

Seamus: Absolutely. Even down to the fact that usually along with someone that has a company vehicle, they maybe have a fuel card for the company. It may be that they'll say, "We need to retain this information for at least a year because if we get a tax inspection from HMRC, we need to be able to back up the use of the vehicle and things like that.

Scott: Particularly because if you're allowed to use it for personal use and for business use, then there will be a tax implication for the individual.

Seamus: Absolutely.

Scott: As well as the company.

Seamus: I think that's a policy decision within the organisation, within the business to decide how long they need to keep the information for.

Scott: I don't know if it's implicit in this question, but I think what they're saying is, "Can the employee stop an employer in producing a policy?" The short answer is not really. I mean, it's their vehicles. They can bring them in.

Whether they can argue or whether there will be complaints or whether there will be some kind of industrial action taken if you're tracking people when they're using it on the personal use, if that's part of their agreement, that's maybe different.

But employers pretty much have a right to say, "We want to protect our vehicles. We want to protect our property".

Seamus: I think there's a potential buy-off there as well to say, "If you're allowed to . . ." A lot of employers don't allow the employees to use vehicles on a personal basis either. There can be a bit of a buy-off there to say, "Look, you're getting the benefit of using the vehicle on a personal basis, but we need to have a GPS system in place, and this is the reason why".

Certainly, it seems to me that it would be very easily justifiable for the employer to confirm why they're doing that. In my job, for instance, it might not be that relevant to have a GPS tracker. I might not be doing that much travelling around. I may be going to courts and things like that. I think I would have a difficulty in terms of trying to justify that.

A lot of these other businesses where there are company vehicles used, it's entirely justifiable. And even for insurance purposes now, sometimes the insurance companies do require that there is a GPS device on the car itself.

Scott: Okay. I suppose the other thing we were chatting about before we opened the broadcast was really just about performance. If you go back to even early stuff, anyone that's done CIPD would be looking at halo effects and such. If people know that they're being monitored, it changes behaviour, sometimes for good and sometimes for not so good.

But if it's there and you think you're constantly being monitored, maybe without good reason . . . you know, if it's private stuff, that's not quite as good a reason as, say, security reasons or you're delivering things. You see a lot of vans have "This is being monitored by GPS" and such on the back of the van. So, it can impact on performance if people think they're being monitored all the time.

Seamus: I think as a natural thing for us all, if we feel that we're being monitored or watched, we tend to sharpen our pencil and then make sure that we're adhering to guidance and principle. That's not to say that employees at times will try to get ways around of tracking.

I'm familiar with clients of mine. I know that a client of mine requires a GPS system because they can get called at very short notice in terms of collections that are required and they get short windows of whenever the work is available and they have to send someone there.

Scott: They need to know where the vans are so they can pick the stuff up.

Seamus: They also use it as well to make sure the drivers, the employees, are taking their appropriate rest break. Sometimes the employee will say, "I have 15 loads in the lorry today that I have to deliver. If I can shorten that down and do it inside so many hours, I can get home early". Maybe legally they're about to take their breaks and make sure they're taking their breaks instead. It's important from a health and safety welfare aspect as well.

Scott: Okay. You're listening to Seamus McGranaghan there. We also have Hannah McGrath from the O'Reilly Stewart employment team. I'm Scott Alexander from Legal-Island.

If you have any questions, you'll see there's a little chat box on your screen. You can send them in. That one was about GPS and data protection. The next question we're going to have a look at is to do with working time, so not that wildly different. But anyway, quite a long question, but stick with us. It's worth it for the answer we're going to get, I'm sure.

Working Time

Q: Hermes have introduced a ‘self-employed plus contract,’ a category that has no basis in law. How can the unions and management lawfully do this?

"I read about the Hermes deal with the GMB union, where drivers can elect to receive guaranteed hours at more than the national minimum wage, plus 28 days of annual leave on a self-employed plus contract, or presumably remain as self-employed on better rates of pay but without the holidays and guaranteed wages.

"Surely employers and employees or their representatives cannot opt out of law. Either they must meet the definition of a worker or employee or self-employed, or they don't. The courts have ruled that they are workers, not self-employed, and not entitled to full employee status. How can the unions and management lawfully do this?"

Seamus: Well, this is very interesting and I think this certainly is, as an employment lawyer, one to watch and something that will no doubt be of value in terms of discussion going forward.

Background of this case, in case people don't know, is that it relates to a number of couriers that work for Hermes. These couriers were very much viewed as self-employed and they enjoyed flexibility in terms of being able to set their own hours and all the benefits that come along will be self-employed. But a lot of them were of the view of the fact that they were, in fact, being treated and working as if they were employers and should have had rights in terms of holidays.

Scott: In fairness, they were driving around in a Hermes-labelled van, delivering stuff to my house.

Seamus: And wearing a Hermes uniform as well.

The case itself was really looking for a tribunal to declare that they had workers' rights. This was a case that was dealt with by a tribunal in Leeds. They declared that the workers had the right to holidays and all the associated rights with worker rights, essentially.

What has come out of that, essentially, has been that you've had Hermes and then one of the larger unions within the organisation, the GMB union, sit down and try to agree to some sort of deal whereby . . . I suppose it's a best of best worlds type of scenario that they're trying to bring about. But essentially, what the deal is, it's this almost creation of a new type of category for employment and they're calling themselves "self-employed plus". So, it's almost like one of these drugs that you might buy at the chemist.

Scott: I'm over 50. You'll find I do buy those.

Seamus: It's not just a regular tablet. It's something in addition to that that helps you out.

They call them usually self-employed plus, but there's no category in law in terms of a self-employed plus worker or employee, and they can't write law. The tribunal can also not write law. That's not the job of the tribunal to do that. It's the job of the tribunal to interpret the law, essentially.

But this new category has arisen, whereby what they've said to the couriers is, "If you want holidays and you want guaranteed hours, we're willing to work with you in terms of that. We're still not willing to call you employees, but we're willing to a little bit here".

There's also a benefit to the employees by selecting the hours that they want to work and those guaranteed hours. There's also a bit of an increase in salary for them. They've guaranteed payments in relation to their salary. They're not going to be floating around saying, "I've only got 12 hours this week. I'm hoping maybe next week I'll get 30 again like I did the week before". It gives them some certainty, but it has clearly not given them employment rights as you would a full-time employee.

So, there have been some criticisms of this deal. I think, in a way, and we talked earlier about it, the union are sort of looking for a halfway house in order to pacify the employees to give them some additionality in terms of their rights from Hermes.

Scott: That's for those that want the holidays and the employment protections like equality.

Seamus: Yes.

Scott: For the other ones who are self-employed, they want the benefits of paying less tax and the freedom and the flexibility.

Seamus: Exactly.

Scott: So, the union members are squeezing the union, presumably from both ends.

Seamus: From both ends.

Scott: The union have come up with management with this hybrid category.

Seamus: Yes.

Scott: But I suppose the question is, is it lawful . . . I'm guessing from you, you're saying it's dodgy. It's at least open to challenge.

Seamus: I would have concerns about it. I think, just reading some commentary around the deal, you can see the positives. You can also see the negatives. It would be interesting to see what position Revenue and Customs take.

Ultimately, in life, you have death and taxes, and Revenue and Customs want their slice of the pie. They want their tax. There wouldn't be any deductions in respect to tax and national insurance under this scheme. I think it's challengeable from a Revenue and Customs point of view that they will want to investigate and look at this carefully.

Scott: It's not that dissimilar to the dependent contractor status that was put forward by the Taylor Report.

Seamus: Taylor Report, yeah.

Scott: Which doesn't have direct application here, but I think what's happening is that because you have the gig economy and you've got people on platforms and so on, they're trying to get something that reflects reality. I can understand where they're trying to go with this, whether it's lawful as the law stands at the moment. I think it would take Parliament to bring in a new category like dependent contractor or self-employed plus or whatever in order for this really to be completely legal.

Seamus: Yeah. There are two sides to the argument. There's commentary out there saying that Hermes need to go the whole hog here and declare them employees and treat them in that way. But in saying that, there are workers within the organisation that don't want to be treated as employees. Then there's other commentary saying this is a great idea. It's a hybrid, but very much for me, it's the round hole and the square peg.

Certainly, there are difficulties around it. It may be that, as time moves on, this maybe is a very positive thing and it works very well. It may be that Parliament will look at it and make a further declaration. Certainly, I think it's very challengeable at the minute. I'm interested to see what develops out of it.

Q: Are employers in breach of the WTD if they don’t keep records of actual daily working time?

Scott: A not dissimilar question has come in. It's in a Spanish case of Federacion . . . I will not go through the rest. I did earlier and it was absolutely fantastic. Anyway, "Advocate General Pitruzzella has given an opinion that, under the EU Charter of Fundamental Rights and the EU Working Time Directive, employers are obliged to set up a system for recording actual daily working time for full-time employees or full-time workers who have not expressly agreed individually or collectively to work overtime. Is Northern Ireland legislation in breach of the directive and will we as employers be held to be in breach if we don't keep adequate records?"

Hannah: I'm a little disappointed you didn't try and pronounce that case again.

Scott: I was so good, but when you go live, it's one of those ones. There may be a Spanish person listening and I'd get nothing but complaints.

Hannah: Fair enough. For anyone that's not aware about this case, this was, just very briefly, a Spanish trade union who sought a declaration from the bank that the bank was under an obligation to establish a system to record the actual number of hours worked per day by the bank's employees. Because the Spanish law wasn't consistent with EU law, it was referred to the ECJ.

The Attorney General has advised the court . . . so it's not bound at this time, but they've advised the court that the Spanish system makes it more difficult for the workers to enjoy the protection of their rights under the working time, and not the fundamental rights.

What the Attorney General has proposed is that the ECJ put forward basically a recommendation that this is what should be in place, that they should be recording the actual number of hours that the employees are working per day, unless they have an agreement or they're working overtime.

Scott: So, in effect, this is not dissimilar to a number of decisions that we've had from the European court, which is saying that people are entitled to holidays.

Hannah: Yes.

Scott: They're entitled to various rights under the working time regulations in the UK, and the directive at the European level, the Fundamental Charter, which has been incorporated into, is saying, "These are fundamental rights. If you don't get holidays, if you don't get breaks, if you are forced to do certain things, then you will get sick as an employee, and therefore employers have various obligations".

They have to allow them to take their holidays. They have to allow them to carry over if they're sick and can't take them and so on. Those cases have been coming through, all going forward in the direction in relation to annual leave.

This one seems to be going in a similar way. It's say, "If you don't record the actual hours, it makes it much more difficult for employees to enforce their rights, and therefore it must be in breach of the charter". Is that basically it?

Hannah: Yeah. That's correct. In terms of where Northern Ireland stands, we have our working time regulations, and Regulation 10 only requires employers in Northern Ireland to keep adequate records to prove the working time limits during the day and night. So, basically, workers aren't working over the 48 hours, for example.

There's no requirement on employers in our legislation to keep these detailed records. And we've spoken previously about the south and what they have. And we've looked at the Kepak case and how they are required to keep these really tight records that are subject to inspection. I do think if this is taken on board by the ECJ, it's open to challenge here.

In terms of what employers can do, it's good practice to be keeping these records in place. Like you said, employees need to have access to these rights. They're going to get sick if they don't have them. It's in the employer's . . . it's to their advantage that their employees are well and fit to work.

Scott: And that they can prove they have maintained the rights under the directive.

Hannah: Yes, 100%, or they end up in the case that you have these records to pull out.

Q: As an NI employer, most of our staff work overtime. How can we protect ourselves?

Scott: Yeah. They'll all be discoverable. We've got a follow-up question here. "As a Northern Ireland company, most of our staff work overtime. How can we protect ourselves?" I suppose it's the same thing. You keep the records. You prove that people haven't been working over 48 unless they've opted out and so on.

Hannah: Yeah. Keep your records. And that's anything from clocking in and out or requiring people at the end of the month to send through the overtime hours they did, whatever system you have in place within your company.

Scott: Your pay system will reflect it as well. It's better that you keep separate records if you're going to be having that.

Now, the downside is you go back to the GPS thing and people are saying, "You're watching me all the time". But hey, if you want rights, there's got to be a balance for employers and employees as well.

Seamus: There has to be a process as well, where the employer is aware of the hours that have been worked in overtime so that they can pay the staff accordingly, if they're not obliged under the contract just to complete it without payment. But you would expect the employers are keeping on top of that.

Also, just looking at the holiday aspect and the current position that you have to look at the normal working week, those records will help any employer stand over that.

Q: Should we get our employees to sign something stating that they are openly wanting to work additional hours?

Scott: Okay. We have a follow-up here. "Should we get our employees to sign something that they are openly wanting to work extra or additional hours?"

Seamus: You would normally see something in the contract that would be reflective of . . . sometimes the contract will say, "If overtime is offered, you have to work it". Sometimes it says that overtime is offered and you have a choice. It's back to the basics on holiday pay of voluntary overtime and required overtime and things like that. So, if it isn't in the contract, I think you might be looking to incorporate the terms into the contract itself.

Scott: There's no real need to put an agreement every time you have to work . . .

Seamus: No.

Hannah: No.

Scott: "I agree I'm going to work overtime". It's implied by the fact that you've done it.

Hannah: Yeah. I think it's just keeping the record and the employees knowing what happens when they do the overtime. Do they get paid? Do they get time in lieu of the overtime, or is it just expected that you'll do the overtime?

Shift Start Times

Q: Should employees be paid for time taken to prepare for their shift, namely, to change their shoes?

Scott: Okay. We'll move on to another one, which is not, again, dissimilar. We're sticking to the working time issues, if you like. This is about shift start times. I like this question.

"The company manufacturing quality process requirement is that shop floor employees must wear special shoes, which cannot be worn outside before entering the shop floor. There are various electrical static purposes here. Therefore, employees must go to the locker room to change shoes before entering the shop floor where the clock-in machine is.

"Manufacturing work instructions state that the stop/start time is either 8:00 a.m. or 8:00 p.m." So, there are 12-hour shifts, presumably 24 hours coming through here or at least . . . yeah, it could be 24 hours, a seven-day week.

"Employees must be at their workstation and production line ready to start for 8:00 a.m. or 8:00 p.m. at shift handover". The question here is should they continue to be paid from 8:00 a.m. or 8:00 p.m. start at the workstation, or should they get an additional five minutes approximately before that in order to change their shoes?

Seamus: Well, this is a question that isn't really that new. It's something that typically happens in a lot of different types of industries. The position here is essentially that the employee is required to start their work at 8:00, so they have to be there and ready to start at 8:00 a.m. But in order for them to do that, they have to put on these change of shoes that they have to take place.

There's a potential argument from the employee to say, "In actual fact, for me to be physically able to start working at 8:00, to start the actual physical side of the work, I need to start work five minutes before that because I have to change my shoes", or whatever it is. You can think about lots of other jobs where somebody can't just simply go in and do a job. They have to take steps in advance of maybe preparation steps.

Scott: We were chatting earlier about some of the electronic companies. They would have complete uniforms. You're completely covered head to toe. You've got to put those on. It's ridiculous to say a surgeon wouldn't be paid for scrubbing up. It's fundamentally part of the job.

Seamus: The bottom line is the employee is entitled to payment in terms of what you would classify as working time, if they're full-time at their work and they're entitled to payment in relation to that. But you are talking about five minutes here and it's five minutes before the start of the shift.

So, I very much see a distinction in terms of if someone comes into my office to work, that means that they should be at their desk at 9:00 a.m. and ready to start to work. They don't have to take any special steps in order to do that. They just have to be physically at their desk at 9:00 to start work, or whatever it is in the office they work.

Here, there's an additional requirement essentially that you can't start to work until you have the prepared work done, first of all, almost. The question then comes down to "Is it working time?" In my view, that is working time. If you're having to take these proprietary steps in advance, then your working time should start from that point.

We had an interesting conversation about whether or not you could bring a claim in relation to that and whether you would be successful with it. I think fundamentally it comes down to is there are ways and means for the employer to deal with these additional five minutes. And it is five minutes that we're talking about. I accept that.

Seemingly, what the employer wants is a seamless transition in the shifts. So, if somebody's stopping their shift at 8:00 p.m., there's somebody there straight away to keep things moving and keep things ticking over on a continuous basis.

There's a requirement there for the business to do it. But I think there's probably a way for the employer to try and deal with it, and that could be via giving an additional five-minute break during the day or during the shift. These are long shifts. They're 12-hour shifts. Or come to some sort of agreement in relation to that there's maybe a general extra payment made every month and the salary to cover off on these extra times.

You can certainly see people that work to rule having a difficulty with this, people saying, "If I have to start working five to 8:00, I want paid from five to 8:00". We all know those employees and places of work, where you might finish at 5:00, but the coat is on and the preparation to get home starts at ten to 5:00. Essentially, the employer is . . .

Scott: Losing five minutes.

Seamus: So, it can kind of work both ways. Ultimately, I think it's probably an employee/employer relations position. Anybody that has taken the position up, it should made clear to them that the expectation is that the starting time would be at five to rather than at 8:00, or that they'll only be paid from 8:00 to whatever.

Scott: And if you're paid a salary, then as long as it's over national minimum wage, it wouldn't particularly matter.

Seamus: No.

Scott: But if you say, "Hey, you start at five to 8:00 or you start at 8:00," you're not getting any more money for that particular thing because you're paid an amount to do a job. This one here, it may be different if they're paid hourly rates and so on, or if the contract specifies you are paid per hour, there may be some kind of argument there. It really does come down to what the contract says.

Seamus: It depends on everybody's individual circumstances. Again, it depends on the type of work that you're doing and the job that you're doing and the industry that you're working in as to how this would be dealt with. But I would have thought there's a sensible way for the employer to take that forward without having to get embroiled in concerns over five minutes.

Scott: Well, the person here . . . You say five. The person here has just got in touch on the chat box there saying it's actually 10. It's five minutes either side of the thing where you've got to take the stuff off.

Seamus: Right.

Scott: There's a lesser argument on the other end saying, "You've got to get your shoes off or whatever and get yourself prepped. You've stopped working".

I don't know that the argument is quite as strong on the other side. It almost is that there's an issue between the attitude. It's almost attitudinal. I'm never worried about five minutes, 10 minutes here, and the thing you throw yourself into. But then maybe I get rewarded for my flexibility or something like that.

Seamus: Saying that, certainly within my role, it wouldn't concern me, five or 10 minutes. It's a practicality sometimes, that there are things that have to be done and you have to spend the time until they're done.

But I do remember back when I was a student in a student job and I do remember getting paid to 7:00 but never getting out until ten past, and that used to quite irk me whenever I was younger.

If I tallied that up over a week or a month, you can maybe be looking to a few more pound in your pocket certainly. You could understand why some people do get frustrated about it. I suppose it comes down to issues like the culture and maybe the ethos that you're working in and the expectation of the employer and how you're justly rewarded in terms of additional time you are working.

Q: Should an employer be offering time in lieu if they do not have contracted overtime payments, or not if you stay within the 48-hour maximum?

Scott: Another couple of questions coming in just on the overtime and things as well that have come in. Should an employer be offering time in lieu if they do not have contracted overtime payments, or not if you stay within the 48-hour maximum?

Seamus: Usually, the contract will set out what the position is on that. A lot of contracts will say, "We will offer you employment . . ." So, say they're contracted to 40 hours. There's some additional overtime there. The contract might say, "If we give you overtime, we don't pay an enhanced rate. We just pay it at the same amount". Sometimes it will be an enhancement to try and entice people to work the overtime.

But sometimes people play it off in terms of toil and say it's time in lieu of notice instead of payment. It depends on what the contract says. Where there's nothing in place at all, I suppose you do have to be conscious of the working time regulations and the 48-hour working week.

Scott: Certainly, if you're doing the average, that's an average over, from memory, 17 weeks, isn't it?

Seamus: Seventeen, yes.

Scott: Unless it's changed by collective agreement. So, in that particular one there, you've got to make sure you don't average over 48 hours, but you can do more in 48 and then less during that period. It's only average.

For most people, you don't want over 48 hours. For many people you get salary. You may be expected to do additional work. You're not going to get paid for it. You're not going to get time off. It comes with the job. It's just the way it is. So long as, I suppose, you're not falling below the national minimum wage, there's probably going to be no claim for the vast majority of people. It just comes with the territory.

Seamus: I agree.

Scott: We'll move on. There are questions coming into the chat box and we may get a chance to come back to them, but I want to deal with this one, which is to do with workplace stress that's come through and assessment. It's a different angle than some of the ones we've had in the past.

All the questions, by the way, if you haven't seen it before, if you go on the Legal-Island hub and go into the Resources section on Ask Seamus and all these other webinar things, we've broken them down and we've got transcripts and we've broken the questions down. You can actually search by terms just within that section.

So, if you want to know about working time and all that, you can find the Q&A all set out there in writing, or you can listen back to all the recordings we've had of all the webinars that we've done.

Workplace Stress

Q: There is a Chinese wall system in place with regards our internal counselling service and HR. How can we help the employee if we are bound by a duty of confidentiality?

Anyway, this one is slightly different. The question is, "We have an in-house occupational health team who offer a confidential counselling service for any employee who is experiencing stress. The problem is that this is a confidential service. There's no communication of the issue to managers or HR who could potentially act to support the employee and possibly address the cause of stress if it's work-related. Can you suggest any way around this if indeed there is any way around this?"

Hannah: So, this sounds like an employee assistance service that the employer has in place. So, it basically offers one-to-one confidential counselling for the employee. The employer is not necessarily aware the employee is even attending that counselling. It basically works on the basis that the employer contracts with a third-party to provide this service to the employees.

So, slightly different to the scenario that we've discussed before, where you're having potentially problems with an employee and you want to send them to OH to find out if they're fit to work. That's different to this. There's no requirement for this counselling service to tell the employer what's being discussed whilst in these sessions.

My understanding is that it could be about anything that the employees are going to talk about. It could be personal stuff. It could be work stuff. If it is work stuff, I would imagine the counselling service will be telling the employee, "Go and talk to your employer. This is something you need to sort out".

In terms of can you suggest a way around this, there's no way that you can get that confidential counselling service to tell you what's going on. That's just not happening.

Scott: It wouldn't be confidential.

Hannah: That just defeats the purpose of it. I think it does come down to being aware of your employees and what's going on. If you have an employee that you recognise is struggling, you can see the quality of their work changing, maybe you know they've had a death in the family or they're caring for someone or they're sick, it's about interaction with that employee and checking in with them. "Are you okay? How are you getting on? How are you dealing with things?"

If you do think there are problems there that's causing problems and work that you can assist with, you have to refer them, then, to OH to ask if they're fit to work on what needs to be done to assist them. You can't use that confidential counselling service as that means to get that information.

Scott: They're two separate services.

Hannah: Yeah.

Scott: One of them is there to assist the employee. If they need it for anything at all, you can go there. That doesn't stop just because somebody is or isn't going to the confidential service. It wouldn't stop any employer from referring an employee to occupational health and saying, "Is this person fit to work?" It may well come out that they've been going to the counselling service or it may not, but the employer would never get access to that because it defeats the whole purpose of saying, "You have this free confidential service".

In the long run, it's helpful if employees have stress issues, whether they're at work or whether they're at home or in their private life. It's helpful for employee hours to provide that service in some way so they get back to work and get rid of their stress.

So, you usually pay an annual stipend and Inspire or whoever it happens to be would come back and say, "Look, it's been used so many times and we're giving so many hours' advice to so many employees", but that's about it.

Hannah: That's the height of the information you're going to get.

Scott: Yeah, and quite right too.

Hannah: Yeah.

Scott: We're going to move on to another question now and change it. I'm seeing a number of questions again coming through the chat box. Very good. If we don't get through them today, you could contact Hannah or Seamus and they might be able to get back to you specifically, or you could maybe follow up one or two of the questions with a bit more detail and write to me, scott@legal-island.com.

Recruitment and Selection

Q: Can you use 'lack of culture fit' with the organisation as a valid reason for not employing someone even if they meet all the other criteria for the role?

Anyway, this recruitment and selection, it's a very clever question. I like this one. "Can you actually use 'lack of culture fit' with the organisation as a valid reason for not employing somebody even if they meet all the other criteria for the role? How do you avoid a discrimination claim in this sense?"

Seamus: This is a good question. It's an interesting one as well. I have to say, immediately, my red flag is up in terms of danger on this one with the aspect of looking at a culture fit. I think I probably need to know specific circumstances around what is the culture fit.

Scott: Let's take something like, I don't know, the tech companies, so Apple and Google and so on, or some of those call centres where they tend to have young people. They have this youthful, vibrant thing. So, maybe start-up companies, they tend to be younger people and they're saying, "We want somebody that fits this get up and go, vibrant, enthusiastic type of culture".

Seamus: The short reply to that is then you're looking at your age discrimination regulations, the 2006 regulations, as a potential of a claim against . . .

Scott: It leaves you open.

Seamus: I think it does, yes. Ultimately, I think there are a couple of questions around this. I think the company needs to be very careful in terms of making assumptions as well in terms of cultural fit. It could be that you have somebody older but they don't lack any kind of enthusiasm. They could be a real get-up-and-go-type person. I think if you end up in a tribunal, you're going to have difficulties in terms of objectively justifying what your position might be.

I would say as an employer, if you did have concerns like that, I would be writing them down and going through them in my head as to what are the real reasons here as to why this person might not fit in.

Then I think you'd have to look at the potential discriminative points. Are there protected characteristics involved here? Then looking at whether you can objectively justify any type of discrimination. It really is problematic.

Scott: You could maybe get round it if you can justify some of the questions. Let's move away from that and say the culture fit is we do lots of long hours here. We just love our job. We never want to leave it, and so on. You could ask questions about flexibility. You could ask questions about being willing to travel. So long as they're a part of the job, you may be able to justify those if that counts as culture.

Seamus: Yes.

Scott: I don't know if it does, but if it counts as culture . . . and it may well do. Long hours culture, people use it. Whether that, again, would be discriminatory on grounds of indirect sex discrimination because fewer females could comply or so on, it does make things difficult.

Seamus: It does. For instance, if you approach an employer and you know that the background to the employer is they're involved in lots of sports, they have a great football team, they're competitive . . . You know, that kind of like school basis, where some schools are well-known. Some employers are known for their . . .

Scott: Golf team.

Seamus: All those sorts of things. If the person arrives for the interview . . . I mean, the bottom line is if you have someone that is ticking all the boxes and is coming out on the recruitment process as the number one candidate for the role, it's very difficult then to say, "We don't have a cultural fit here in terms of it". That's the purpose of you using your criteria and everything else.

In saying that, there are just so many minefields that I can think about. Even looking at the aspects of the discrimination, it took my mind straight back to the Randox Laboratories case, which was in the tribunal a number of years ago, where an employee who was overweight and obese brought a discrimination claim. And the tribunal didn't . . . It's that aspect of saying, "I can't take a claim for discrimination because I've got ginger hair", or, "I'm fat and I'm obese". But the tribunal didn't. They drew a link into it and said it was disability discrimination instead.

Even whenever you're making your list and saying, "I'm going to try and risk assess my position here in terms of the cultural fit", I think you have to think outside of the box as well. Not just on the [inaudible 00:41:03] claim that we know about and the protected characteristics, but you're thinking outside the box there as well.

Scott: You don't have to use criterion-based interviews. Even the quality commission themselves are moving away from that angle because they're so easy to pass. You could ask questions, speculative ones, such as, "What would you do in a situation like this? How would you handle this particular situation?" You could give tests which would be more reflective of what you do.

I think one of the problems was saying they don't fit the culture, as if people are being a little bit less creative when it comes to asking questions.

If you wanted to give people problems or give them problem-solving things, then you may well find if you're looking for people who have really got that enthusiasm for dealing with issues, if that's what your job entails, then ask more questions about the job and the real aspects about what you'd like about it. You can call it culture. You can call it anything you like.

Seamus: One example that springs to mind is that if you . . . I'm just thinking back to a situation that a client of mine recently had. But he had someone that worked in an area of debt collection. What they needed in terms of that person was they needed an aggressive personality, somebody that was going to be ringing up the debtors that owed money to the business and saying, "You haven't paid your bill yet. When can I expect it?" And they were going to be phoning back a few days later if the money hadn't been paid.

What they were looking for was a certain type of individual that they could get from an interview that was going to be aggressive and asking questions, "How would you handle it? If the person told you they were going to pay it by the Friday and they hadn't paid it, what would be your next step?" They're looking for that. We see them in sort of for fee earners and businesses as well. You want someone that has got that mind to get there.

That's the potential of saying that they're not right for this job. They wouldn't be. They're too nice. They're not aggressive enough. But equally, the person could go back and say, "Well, what is the company policy and procedure? I'd follow it. If I'm going to do the job, I'll follow it to the T and that will be it."

So, I see both sides of the argument. I think I would definitely take a cautious approach to something like the culture fit, particularly in our jurisdiction and everything else. It would just ring alarm bells.

Scott: Okay. Thank you very much to Hannah and Seamus. We don't have enough time to get through all the questions. If you sent in any questions that we had earlier about Brexit and certification and postings in Europe and so on, sorry we didn't get through to those. We'll hopefully get through to them the next time.

We might even have clarity. The next webinar will be post-Brexit, I'm sure. On the 5th of April is our next webinar.

You can listen back to this one probably in about an hour on the Legal-Island website, and we'll have the transcript up in a week or so as well.

Thank you very much to Claire for all her assistance over the last two years and to Lynsey here today. We look forward to speaking to you next time. Thanks very much, everybody. Bye.