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Archive

July, 2022

Legal lightbulb – people law, policy, and practice

Posted on: July 28th, 2022 by Halborns Limited

As part of keeping you in our focus, our ‘legal lightbulb’ update ensures you’re on top of the latest changes in legislation, case law, and people trends.

Proposals for paid leave following miscarriage

A new Bill has been put before parliament proposing three days’ paid leave for parents who have experienced miscarriage, ectopic or molar pregnancy before 24 weeks. No such rights currently exist. We’ll keep you updated on the progress of the Bill.

Government menopause proposals

The government have confirmed they will be helping businesses to communicate the support available for those affected by menopause. In addition, a Health and Wellbeing fund for smaller businesses will be available. Separately, they have also confirmed that menopause will not be made a protected characteristic under the Equality Act 2010.

Tribunal decision on ethical veganism

A tribunal has confirmed that it is possible for ethical veganism to be protected as a genuine philosophical belief under the Equality Act 2010. However, that protection doesn’t extend to employees who break the law in the name of their beliefs.

People dates for your diary

15 September – Pension Awareness Day

19-25 September – Recycle Week

10 October – World Mental Health Day

10-14 October – National Work Life Week

18 October – World Menopause Day

 

This update is accurate on the date it was sent (28 July 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Warning to employers using redundancy as a ‘cover up’

Posted on: July 28th, 2022 by Halborns Limited

The Employment Appeal Tribunal (EAT) upheld a 25% uplift in compensation awarded against an employer using redundancy as a cover-up for other issues.

Background

An employee was made redundant following a reorganisation. She’d raised a grievance during the process complaining that her role was not actually redundant as headcount was increasing and she was being deliberately side-lined by the new CEO. The EAT agreed saying the redundancy was a “sham”. They agreed with the tribunal’s decision to increase the compensation awarded against the employer by 25% – the employer had failed to comply with the ACAS Code of Practice on disciplinary and grievances which were the real issues behind the redundancy ‘cover up’.

Practical takeaways

“Can’t we just call it a redundancy?” – something we’re asked a lot! Tribunals like facts, notes, chronologies and understanding details. If you can’t evidence the redundancy is genuine the dismissal will be unfair and compensation increased by up to 25% due to the lack of transparency.

Take advice early – if an employee isn’t right for the role they’re doing early advice is vital. We can understand the real reason why that is the case and coach you through the correct process to minimise risk whilst achieving your intended aim – get in touch for our support.

 

This update is accurate on the date it was sent (28 July 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Create appropriate space for breastfeeding – new decision

Posted on: July 27th, 2022 by Halborns Limited

A recent tribunal decision has found that employers must provide employees with a private workspace to express breastmilk to avoid successful claims for sex-related harassment claim.

Background 

A teacher returning from maternity leave informed her employer a number of times that she would need somewhere to express breastmilk whilst at work. The school failed to support her request meaning she used her lunch break to express in her car or in the school toilets. The tribunal held that the employer’s behaviour created a degrading and humiliating environment for the teacher, and therefore amounted to sex-related harassment.

Practical takeaway 

Return to work – the school in this instance were specifically called out for their ‘incompetence’ in managing the employee’s return to work. Any employee returning from maternity leave may have concerns or reservations, so ensuring you’re carrying out a timely risk assessment to pick up on and address any possible issues (then acting accordingly) will help to mitigate potential challenge.

Health and safety – whilst there’s no statutory right to facilities in order to express breastmilk, the Health and Safety Executive provide specific guidance that a private and clean environment should be provided as well as a fridge in order to store expressed milk.

If you need support in managing a return to work or requests from employees, Intelligent Employment is here to help – get in touch. 

 

This update is accurate on the date it was sent (27 July 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

New holiday pay case

Posted on: July 21st, 2022 by Halborns Limited

A Supreme Court decision has held it is not lawful for businesses to calculate workers’ paid holiday entitlement using 12.07% of hours actually worked.

Background 

A music teacher was engaged on a zero-hours contract to work different hours each week during term times. Under the Working Time Regulations, she’s entitled to 5.6 week’s paid holiday each year. Her employer calculated her holiday pay entitlement using 12.07% of hours. The teacher argued in doing so she was being put at a detriment.

The Supreme Court agreed. 5.6 weeks’ entitlement should be paid based on the average hours over the previous 52 weeks worked.

Practical takeaways 

Back-pay – if you’ve previously used the 12.07% method, it’s possible to minimise the potential for claims of unlawful deductions from pay by immediately starting to pay workers’ holiday entitlement as set out above. This stops the ‘claims clock’ at that point, with the time limit for litigation running out three months after.

Communication – if you’re changing your approach, think about how you’ll communicate the change. Tying it in with new contracts and introducing additional benefits can help minimise questions or possible challenge.

Always take advice if you’re unsure how this decision might affect you or you need support with your approach moving forwards – get in touch to discuss with us.

 

This update is accurate on the date it was sent (21 July 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Refusal to use preferred pronouns

Posted on: July 19th, 2022 by Halborns Limited

A Christian doctor refused to use transgender service users’ preferred pronouns – the Employment Appeal Tribunal (EAT) found that his dismissal was not discriminatory. 

Background

The doctor worked as a health and disability assessor. He refused to use the preferred pronouns of transgender service users based on his Christian faith and belief that people are born male and female and cannot change their sex or gender. This belief conflicted with his employer’s policy to refer to transgender service users ‘in their presented gender at all times’.

The EAT held that such beliefs could be protected under the Equality Act 2010. They also held, however, that due to the way the doctor had expressed his beliefs and taking into consideration the employer’s policy, the employer had not discriminated against the doctor by protecting potentially vulnerable service users in the way they had.

Practical takeaways

Balancing act – as we’ve seen in another recent decision, freedom of expression must be balanced with respect for others. Respectful communication and behaving with dignity can be reminded through up-to-date training and policies. Get in touch for access to our gender identity policy.

Focus on facts – this decision (and similar) are highly fact sensitive, so approach cautiously. The impact of the doctor’s beliefs on service users was key, as was his lack of any attempt to seek adjustments that would cater for his beliefs.

The last word – the doctor has expressed his intention to take his case to the Court of Appeal meaning this may not be the last word we hear on this. We’ll update you when we know more.

Our Intelligent Employment platform includes a gender identity policy to support you to champion a workplace environment where everyone feels included with the freedom to express themselves – find out more about accessing Intelligent Employment.

Gender Identity | 21 July – sign up for our latest webinar 

In celebration of Pride, we’ve joined forces with GIRES (the Gender Identity Research & Education Society) to bring you practical, real-world guidance on gender identity (click here for all the detail). Join our webinar on 21 July 2022 @ 10 am and register your place today!

This update is accurate on the date it was sent (19 July 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.