Archive

Category: Employment Law

Support offered to employers when dealing with racist remarks

An Employment Appeal Tribunal (EAT) has recently supported an employer’s decision to dismiss a long-serving employee who posted a racist joke on their intranet.

Background

The employee posted a racist joke on their employer’s intranet – they apologised for their actions and also had a long, flawless service record. Regardless, the employer decided to dismiss them for gross misconduct. The employee claimed unfair dismissal. The initial tribunal found that anything more than a final written warning fell outside the band of reasonable responses because of the apology and service record.

The EAT disagreed and found that the dismissal was a reasonable response.

Practical takeaways 

Zero-tolerance – taking a zero-tolerance approach to racism or any other non-inclusive behaviour sends a strong cultural message as to what your business expects. The EAT made it clear that the approach is a reasonable response.

Reasonable response – this case doesn’t mean that all dismissals connected to racist acts will be fair by default. You’ll still need to show you considered mitigating circumstances and explain why you considered a final written warning to be insufficient in the circumstances.

Records and process remain important – clearly, if your decision-making process is flawed or you don’t have the records to show why you dismissed, the decision is likely to be unfair.

Making a cultural shift – if you’re inconsistent in your decision-making (you dismiss in one circumstance and not in another, for example), the decision will again be unfair unless you have good reasons for the different treatment (which are recorded). We’d recommend early advice to support with new documents, training and manager support if you want to adopt a different culture, perhaps one of zero tolerance. You must ensure all employees are on the same (new) page before holding anyone to account.

As always, securing straight-talking advice early is your best bet – we’re here to help!

This update is accurate on the date it was published, 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.
Posted On: March 15th, 2024By |

A series on settlement – protecting negotiations

Not all settlement negotiations result in a deal. So, protecting any offers you make from the earliest conversation is crucial to ensure they can’t be used against you in future litigation.

‘Without prejudice’ and ‘protected conversations’ can be used to protect exit negotiations but are often confused leaving you unknowingly exposed. Both have their uses! Here’s what you need to know:

Protected conversations

A better label would be ‘partially protected conversations’ as they allow you to discuss an employee’s exit with them without exposing you to claims for unfair dismissal. But, all other claims are fair game!

Be aware though – even the protection in respect of unfair dismissal falls away if there’s the suggestion you’ve behaved improperly and put the employee under undue pressure. So, there’s a place for them provided there’s no risk of claims beyond unfair dismissal.

Without prejudice

There has to be a dispute in play for this protection to work (so think grievance, informal allegations etc). Assuming there’s a dispute, ‘without prejudice’ conversations protect against all claims, including discrimination and whistleblowing.

The protection falls away if there is ‘unambiguous impropriety’ on your behalf so it’s not a magic answer to everything.

Take early advice 

Always speak with your employment lawyer before entering into settlement discussions – if early discussions aren’t protected effectively they’re hard to unpick. We’re here to help.

In the next instalment we’ll look at strategies for creating authentic and supportive settlement offers (it’s not always about the cash!).

This update is accurate on the date it was published, 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.
Posted On: March 14th, 2024By |

Legal lightbulb – people law, policy and practice

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.

Increased penalty for illegal working

The Home Office has updated the ‘Employer’s guide to right to work checks’. Applying to any right-to-work checks completed on or after 13 February 2024, fines for repeated breaches of the right-to-work scheme have increased to £60,000 per illegal worker (the first breach is capped at a maximum of £45,000). The increased penalty doesn’t apply if you’ve ended any illegal working identified on or before 12 February 2024.

Gender pay gap reporting

The 04 April 2024 reporting deadline is approaching to submit 2023/24 reports (or 31 March for public-sector organisations). If you employed 250 or more employees on the ‘snapshot date’ (05 April 2023) you need to submit a report and base your calculations on payroll data taken on this snapshot date. You’re not legally required to provide a supporting narrative, but there are reputational benefits in doing so to create the context for your report and set out your action plan for closing any pay gap you might have. Click here if you want to discuss with us your approach to gender pay gap reporting.

Increase in long-term illness

Figures from the Office for National Statistics show that 2.8 million people are economically inactive due to long-term illness – an increase since the end of the Covid-19 pandemic. Maximising occupational health guidance, greater flexible working, and supporting individuals with caring responsibilities have been highlighted as key drivers to tackling long-term illness and encouraging individuals back to work. If you have an absent employee and you’re struggling to secure their return, contact us here.

Annual increase to tribunal compensation limits

From 06 April 2024 the following increases will take effect:

  • A week’s pay (for the purposes of statutory redundancy pay calculations and calculating a basic award in the Employment Tribunal) will increase from £643 to £700; and
  • The maximum limit of a compensatory award in the Employment Tribunal will increase from £105,707 to £115,115.

People diary dates – April 2024

05 – Walk to Work Day

01-30 – Stress Awareness Month

01-30 – Active for April

Get in touch if you’d like to discuss anything we’ve covered in this update and how it might impact your business. 

This update is accurate on the date it was published, 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.
Posted On: March 11th, 2024By |

Extended redundancy protections – 06 April

Last but not least! From 06 April, pregnant women and those taking maternity, shared parental or adoption leave will benefit from extended redundancy protection. Here’s the detail.

Currently, a woman at risk of redundancy is entitled to any suitable alternative roles available during her maternity leave period (ahead of any individual selected for redundancy who is not on maternity leave).

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 means that from 06 April:

  • You must offer in priority to anyone else suitable alternative roles to any individual at risk of redundancy and this is the case from the date they notify you of their pregnancy, until up to six months after their return to work; and
  • This right also covers parents returning from adoption or shared parental leave who are put at risk of redundancy.

Practical steps – update any applicable policies you have in place and ensure that you’re training those implementing redundancy processes on the new rules to ensure they don’t fall foul of the changes.

We’re here to help! Don’t hesitate to get in touch if you need our guidance on implementing these changes or training your team.

This update is accurate on the date it was published, 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.
Posted On: February 29th, 2024By |

Flexible working day-one right – 06 April

From 06 April, employees will be able to make a flexible working request from day one of their employment. The new right will apply to any requests made on or after 06 April.

As well as becoming a day-one right, the Employment Relations (Flexible Working) Act 2023 also makes the following changes effective from 06 April:

Number of requests per year – employees will be able to make up to two flexible working requests each year (instead of just one, as is currently the case).

Time limit – the time limit to deal with requests (and any appeals) is being reduced from three months to two. You can still extend this period with an employee’s express agreement.

Consult – you’ll need to consult with employees before rejecting a request, but the same eight statutory grounds for rejecting a request still apply.

Dealing with challenges – when making a request, employees will no longer be required to explain how any challenges resulting from their proposed flexible working arrangement should be dealt with.

Update your flexible working policy – you’ll need to update your flexible working policy and any other supporting documentation to include these changes (everything you need is on our Intelligent Employment platform). Ensure you’re managers are trained so they’re ready to deal with any requests from 06 April.

Don’t hesitate to get in touch if you need our guidance on implementing these changes or training your team!

This update is accurate on the date it was published, 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.
Posted On: February 29th, 2024By |