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Archive

Employment Law

“Childcare disparity” – new tribunal guidance

Posted on: July 20th, 2021 by Ginny Hallam

It’s still accepted by tribunals that women face a “childcare disparity”. This case is a reminder that employers may face successful discrimination claims if their decisions put childcaring females at a detriment.

Background 

An NHS Trust introduced a new flexible working policy requiring all employees to work some weekends. This employee was unable to comply because of her childcare responsibilities for her three children (two with disabilities). She was subsequently dismissed and brought a claim for unfair dismissal and indirect discrimination.

Practical impact of the Employment Appeal Tribunal’s (EAT) decision

This means that when you consider introducing a provision, criteria or practice (PCP) potentially putting those caring for children at a detriment, you should bear in mind that the PCP opens the door to possible sex discrimination claims based on the EATs guidance. Your choices are to adjust the PCP so that there is no such detriment or be ready to objectively justify it.

While the EAT case centres around the introduction of a flexibility policy, it’s often the case that employers are faced with decisions that may put those caring for children at a detriment. If you received a furlough request from a female when schools were closed and decided to operate a blanket refusal, you could have found yourself on the wrong end of a sex discrimination claim (for the reasons set out by the EAT) in respect of which you may have needed to objectively justify the PCP.

Intelligent Employment is here to help if you need guidance and support introducing new flexibility policies- find out more

 

This update is accurate on the date it was sent (20 July 2021), 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.

Detail you decisions – new tribunal guidance

Posted on: June 25th, 2021 by Ginny Hallam

A recent decision reiterates the importance of noting your reasons for dismissal at the time the decision was made. 

Background

An employer was reminded by the Employment Appeal Tribunal of the importance of evidencing the reason for dismissal at the time the decision was taken. The employee was disabled and argued the dismissal was for reasons arising from their disability. The employer was able to show through evidence that the dismissal was not connected to the employee’s disability and was as a result of an unauthorised holiday taken by the employee.

Key takeaways

Detail your decisions – the Employment Appeal Tribunal stated that having a clear and consistent paper trail to explain why a decision-maker acted as they did is vital.

Accurate allegations – allegations giving rise to dismissal must be precise. If an issue progresses over time, consider re-investigating to ensure any subsequent disciplinary action or sanction matches the allegations.

Securing great advice at the outset of any potential issue will ensure your processes and evidence trail are robust and effective. Get in touch to find out how we can help.

 

This update is accurate on the date it was sent (29 June 2021), 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.

Legal lightbulb – people law, policy, and practice

Posted on: June 17th, 2021 by Ginny Hallam

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.

No legislation to prohibit ‘fire and rehire’ 

The future of ‘fire and rehire’ when dealing with contractual changes was in doubt, but following an Acas ‘fact-finding’ paper, the Government has confirmed that it will not introduce legislation to prevent employers from dismissing and re-engaging employees as a means to change their employment terms and conditions. It is still the most ‘nuclear approach’ and should be tackled with robust advice given the potential risks (unfair dismissal and discrimination claims, to name a few) but it’s good to see that the option remains. Click here if you need our support on changing terms and conditions.

A trip to the pub whilst off sick? 

Although a recent tribunal decision held that dismissal of a sick employee spotted in a pub was unfair, it’s simply another reminder to get your processes right. The dismissal was held to be unfair due to the employer’s flawed investigation. No written accounts were made, no witness statements or medical evidence provided, the disciplinary policy made no reference to ill health, and the investigation officer also led the disciplinary meeting.

John Lewis’ proactive practices

The retailer is set to be the largest in the UK to provide 26 weeks’ equal paid parenthood leave for all employees, irrespective of how they become a parent. Part of a range of new support for employees including two weeks’ pregnancy loss leave, a ‘Flexible First’ policy with vacancies to be advertised with flexible working, and more! Find out how to access our agile working policy and support with flexible working.

Real-life reasons to deal with discrimination

Celebrating Pride Month reminds us of the importance of championing inclusivity and diversity. Over the last 12 weeks of updates, we’ve reflected on the employment laws connected to diversity. If you’d like to revisit anything we’ve covered to help manage an evolving diversity conversation, you can find all our insight here. Get in touch if you’d like to know more about our equality, diversity and inclusivity training.

 

This update is accurate on the date it was sent (17 June 2021), 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.

Supporting managers with conflict competence

Posted on: May 19th, 2021 by Ginny Hallam

Divisive disagreements can cause conflict and create potential legal risk. Workplace conflicts are estimated to cost UK employers £28.5 billion a year (over £1000 per employee!).

Resignations, reputation, and potential claims are all costs associated with workplace conflict. Equipping managers to create a positive and inclusive environment isn’t just the right thing to do, it makes good business sense. Here are our thoughts:

Invest in manager learning – ‘accidental managers’ often miss out on training to develop their skills to nip issues in the bud and drive a positive culture. Click here to find out more about our training solutions.

Consider coaching – some managers have a fear of being ‘found out’. With the support of coaching ideas can be discussed, experiences shared, and managers empowered to have the right conversations. Click here to find out more from our coaching partners.

Create confidence – as ever, user-friendly, straight-talking processes for dealing with conflict are invaluable. Focus particularly on informal resolution to support managers to nip issues in the bud. Find out how we can support.

Get in touch to discuss how we can support you to equip your managers with a proactive approach to workplace conflict and creating an inclusive working environment. See our last update on why equality, diversity and inclusion training needs to be refreshed regularly.

 

This update is accurate on the date it was sent (19 May 2021), 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.

Legal lightbulb – people law, policy and practice

Posted on: May 13th, 2021 by Ginny Hallam

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.

National minimum wage record keeping 

From 1 April 2021 you are required to keep records for six years to demonstrate you’ve been paying employees the appropriate minimum wage. The National Minimum Wage (Amendment) Regulations 2021 has doubled this period from the previous three-year requirement.

Gender pay gap enforcement delayed 

Those with 250 employees or more (on the snapshot date 5 April 2020) now have until 5 October 2021 to report their gender pay data (rather than 4 April 2021). Enforcement action against those that fail to report their data will not begin until after this date. You are still encouraged to publish reports in advance of October if you’re able to.

Shared parental leave under fire 

Unions and campaign groups are increasing pressure on the government to abolish shared parental leave (SPL). Take up of SPL among those eligible is incredibly low with government estimates between 2-8%, suggesting the policy is doing little to curb gender inequality in child-caring responsibilities. An alternative ‘equitable‘ system available to all working parents (regardless of employment status) has been proposed. Government evaluation of SPL will be published ‘in due course‘.

Get in touch if you’d like to speak to one of our expert employment lawyers regarding anything we’ve covered above.

 

This update is accurate on the date it was sent (13 May 2021), 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.