Keeping up to date

We take seriously our responsibility to keep you up to date so that you can use changes in employment law to commercial advantage. By understanding and interpreting the latest case law and legislation we can deliver updates to you that are concise and usable. With imagination, we are able to ensure that developing law can be used to allow you to achieve commercial solutions, cost effectively and expediently.

Support offered to employers when dealing with racist remarks

Posted On: March 15th, 2024By |

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.

A series on settlement – protecting negotiations

Posted On: March 14th, 2024By |

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.

Legal lightbulb – people law, policy and practice

Posted On: March 11th, 2024By |

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.

Extended redundancy protections – 06 April

Posted On: February 29th, 2024By |

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.

Flexible working day-one right – 06 April

Posted On: February 29th, 2024By |

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.

New right to unpaid carer’s leave – 06 April

Posted On: February 29th, 2024By |

A new day-one right to take one week’s unpaid carer’s leave per year will come into force on 06 April.

The Carer’s Leave Act 2023 introduces this new right and means eligible individuals will be able to make use of the right from day one of employment. How does it work?

Caring responsibilities – the right applies to individuals with caring responsibilities (those providing care for someone with a health condition lasting at least three months, who is disabled, or who needs care as a result of old age). This can include those caring for a spouse, civil partner, child, parent, dependent or someone living in the same house.

How leave can be taken – individuals can request the leave as consecutive or non-consecutive full days, half days, or longer periods of up to one week each year. Employees must provide you with written notice of their intention to take carer’s leave, giving you at least twice the amount of notice than the amount of leave requested (or if longer, three days’ notice).

Delaying the leave – you will be able to delay the leave if it will disrupt your organisation, subject to giving appropriate notice and explaining why the postponement is necessary. You must then allow the leave to be taken within one month of the start date of the leave originally requested. Rescheduling the leave should be done in consultation with the employee.

Self-certification – there is no requirement for individuals to evidence what the leave is for and there’s no document that proves someone is a carer. We’d recommend introducing a self-certification form for employees to complete to set out why they’re entitled to the leave. We’ve added one to our Intelligent Employment platform.

Protection – individuals will also benefit from protection from dismissal or suffering a detriment as a result of taking time off.

New carer’s leave documents – as well as a self-certification form, also want to introduce a carer’s leave policy (we can help!) and train your managers on what this new right means. You’ll also need a system to track the number of days taken.

Don’t hesitate to get in touch if you need our advice or guidance on implementing these changes.

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 – 06 April 2024

Posted On: February 29th, 2024By |

This is the first of the four changes we’re tackling this week. From 06 April, there will be several changes to how and when statutory paternity leave can be taken. 

The Paternity Leave (Amendment) Regulations 2024 make the following changes which will apply in all instances where the Expected Week of Childbirth is on or after 06 April 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 EWC.

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.

Don’t hesitate to get in touch if you need our advice or guidance on implementing these changes.

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.

Employer legitimately rejected employee’s request to work from home

Posted On: February 26th, 2024By |

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.

There are various other changes to flexible working requests from 06 April (download our guide for the detail) which means you’ll need to update your policies and processes. Get in touch for our support making those changes. 

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

Posted On: February 26th, 2024By |

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.

Haven’t yet introduced a menopause policy? We’ve got one ready for you on our Intelligent Employment platform – click here.

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.