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In a recent case, the Employment Appeal Tribunal (EAT) has given useful guidance on how to deal with resignations ‘in the heat of the moment’

Background 

As is often the case, there was a heated altercation between the employee and their manager. The employee resigned and later tried to retract it saying it was in the ‘heat of the moment’. The employer disagreed and ended his employment – the employee claimed unfair dismissal.

The EAT provided useful guidance on what employers should consider in the circumstances:

Objectivity – you should always consider objectively the words used to resign in the circumstances; the language used, what you think the employee wanted to communicate and how the recipient interpreted the resignation.

‘Reasonable bystander’ – if someone was watching the individual resign in the heat of the moment, would they view the resignation as ‘seriously meant’, ‘really intended’ or ‘rational’? If the answer to any of those is no, it’s unlikely to be a legitimate resignation in those circumstances.

Future intention – an employee stating they intend to, or might resign in future is also not enough. It has to be understood that the individual is actually resigning at that moment.

Retracting a resignation – assuming it has been effectively given, the EAT confirmed that a notice of resignation cannot be retraced unless the employer agrees.

New government guidance on holiday pay

Following the holiday pay changes introduced on 01 January 2024, the government has released comprehensive guidance here. A reminder of what the changes include:

• Rolled-up holiday will be permitted for those working irregular hours which means you can uplift their hourly pay by 12.07% to take account of their holiday. More detail here.
• For workers and employees whose pay varies (perhaps due to commission, overtime or something else), their holiday pay must be calculated to include these variable elements of their pay. More detail here.

Case law on ‘dead-naming’

Dead-naming is referring to a transgender person by the name they used before they transitioned. £25,000 compensation has been awarded after an employer ‘dead-named’ an employee for over two years. The employer didn’t take her complaints seriously after failing to change her details on their staff directory, door passes and pension records. They also attached a note to her locker with her former name simply crossed out and her new name written on.

Knowing how to support transitioning employees is an important part of your People Team’s and manager’s skill sets. If they need a reminder on tricky discrimination issues or dealing proactively with equality and diversity we have training to support – get in touch to discuss.

Employment contracts can’t limit compensation

The Employment Appeal Tribunal has confirmed that employment contracts cannot cap the compensation an employee may be entitled to at tribunal. In this case, the employee’s employment contract capped any compensation on termination to £270,000. The tribunal found that the employee had suffered a detriment after making a whistleblowing disclosure and was automatically unfairly dismissed. The contract clause was ineffective and the employee was awarded over £1million in compensation!

Employment contracts can be tricky documents to get right. If you’re not used to dealing with them regularly and don’t have a full understanding of the employment law implications, let us know – we can support with reviews, updates and redrafting!

People diary dates – February 2024

01 – Time to Talk Day | Starting conversations about mental health

05-11 – National Apprentice Week | Celebrating their achievements

01-29 – LGBT+ History Month | Celebrating LGBT+ lives in their full diversity

Changes to two-week entitlement – employees taking paternity leave will be able to take their statutory two-week entitlement as two separate blocks of one week (if they choose to do so), rather than the current position which requires it to be taken as either two consecutive weeks, or just one single week in total.

When leave can be taken – paternity leave will be able to be taken any time during the 52 weeks after the birth. Currently, paternity leave has to be taken in the 56 days following birth.

Notice – employees will only need to give you 28 days’ notice that they intend to take statutory paternity leave. Currently, employees need to give you a minimum of 15 weeks’ notice before the Expected Week of Childbirth (EWC).

Who the changes apply to – these changes will apply in all instances where the EWC is on or after 06 April 2024.

Updating paternity leave policy – you’ll need to make the changes to your paternity leave policy and any connected documents (and ideally let employees know of the changes). Get in touch to subscribe to Intelligent Employment – our unique service that takes the load off so you can progress with your people plan.

The legislation adds into our domestic legislation certain provisions of EU discrimination law that would otherwise have fallen away at the end of 2023 due to the Brexit provisions.

Good news! That means everything you knew about discrimination before 01 January is largely the same! This is with one exception – the definition of what classifies as a ‘disability’. There are a few more, but you’ll have to come to our training on 06 February to discuss those (book now!).

Defining disability

Defining what amounts to a disability is obviously important – if a claimant is not disabled for the purposes of the Equality Act 2010 then they won’t be able to bring a successful disability discrimination claim. So what’s changing?

In addition to the usual test, the claimant will have to show that they are not able to “participate fully and effectively in working life on an equal basis with other workers who are not disabled”. In principle, this is an additional burden on the claimant who needs to show not only that their condition affects their normal day-to-day activities outside of work, but also now within work.