Archive
Category: Employment Law
Employer legitimately rejected employee’s request to work from home
An employment tribunal has found that the Financial Conduct Authority (FCA) legitimately rejected a senior manager’s flexible working request to work exclusively from home.
Background
The employee, who led a team of 14, started working from home for health reasons shortly before the Covid-19 pandemic. Post-pandemic, the FCA introduced a policy requiring all employees to spend at least 40% of their working time in the office. The employee made a flexible working request to work from home exclusively – the request was rejected on the basis it would have a detrimental impact on her performance.
The employee brought a claim on two grounds – the first being that the request wasn’t dealt with in the required time limit, and the second being that the FCA relied on incorrect facts relating to her performance. The tribunal found the FCA had genuinely considered her request and was entitled to reject it (but awarded one week’s pay for a minor breach of the time limit requirements).
Practical takeaways
Performance – when rejecting flexible working requests on performance grounds you need to be able to show clear and consistent performance metrics and expectations (and document your reasons for rejecting). The tribunal noted that there were specific elements of the employee’s role that were performed well from home, but that didn’t mean they couldn’t be delivered better in person.
Time limits – the time limit to respond to a flexible working request is currently three months (including any appeal), but, from 06 April 2024 this will be reduced to two months meaning any requests will need to be dealt with promptly. A tribunal can award up to eight weeks’ pay for failure to comply with these time limits.
Fact-specific – the tribunal noted that every request will turn on its own facts so this decision shouldn’t be taken as meaning all requests to work from home can be turned down without the appropriate level of consideration and justification.
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.
‘Menopausal’ employee successfully sues for sex and age discrimination
A senior executive has successfully claimed age and sex discrimination after being described as ‘menopausal’.
Background
The employee had concerns that the company would need to close within four months if further investment wasn’t made – she made these concerns clear to the CEO. The CEO told another colleague that she was only acting like this ‘because she was menopausal’ and then failed to do anything about the concerns for over five weeks. The employee was also removed as a director and threatened with dismissal if she continued to pursue her concerns.
She resigned and brought claims for age and sex discrimination (amongst others). The tribunal found she had been discriminated against because a “male or younger female comparator” would not have had such a comment directed at them.
Practical takeaways
Setting the tone – the obvious takeaway is that comments like this are unacceptable. However, ensuring senior team members set the right tone on topics such as menopause is key to ensuring a zero-tolerance approach throughout the rest of your business.
Education and understanding – a menopause policy is a great way to show your intention to create a culture of understanding, support those who may be experiencing symptoms, and provide your managers with the confidence to deal with situations appropriately and lawfully.
Training – great policies often fail without training to back them up. Around 77% of businesses still don’t train line managers about menopause (let alone the wider business!). Not only does training raise awareness, but it also shows that you’re serious about supporting and educating everyone throughout your business about these topics.
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.
Heat of the moment resignations
“I quit!”, “I’m not doing this anymore!”, “You can stick your job!”…if you’ve heard those words before you may have been keen to accept the resignation.
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.
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.
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.
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
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.
Changes to paternity leave from 06 April 2024
There will be several changes to paternity leave from 06 April 2024 following the government’s publication of the Paternity Leave (Amendment) Regulations 2024.
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.
Further family-friendly rights coming into force on 06 April 2024 include a new right to unpaid carer’s leave, flexible working becoming a day-one right, and extended redundancy protections for those taking maternity and other family-related leave. Download our comprehensive guide here for the need-to-know detail.