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.

Heat of the moment resignations

Posted On: January 31st, 2024By |

“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.

If you’re ever unsure, always take advice early to avoid a potentially unfair dismissal. Intelligent Employment provides access to unlimited day-to-day advice for exactly these reasons – get in touch to find out more!

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: January 25th, 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.

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

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.

Changes to paternity leave from 06 April 2024

Posted On: January 22nd, 2024By |

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.

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.

Change to the definition of ‘disability’

Posted On: January 17th, 2024By |

Discrimination principles have changed very little following the Equality Act 2010 (Amendment) Regulations 2023 coming into force on 01 January 2024.

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.

Here’s what Rena Christou, Halborns Managing Director thinks…

“Usually it’s the claimant’s view they are being treated unfairly at work because of their condition which triggers a claim for disability discrimination. Perhaps they can’t attend a work event or they struggle with early starts – those kind of issues often trigger claims.

Prior to this legal change the tribunal would not be able to consider the claimant’s ability to work when determining whether they’re disabled – a common misconception by claimants. So actually, this misconception is now legally something the claimant will have to show the tribunal if they’re to succeed with a claim.”

That said, any documents or policies referencing the previous disability definition will need to be updated and you’ll need to train your managers on the change. Get in touch if you need our support. 

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 holiday pay from 01 January 2024 – part two

Posted On: December 20th, 2023By |

From 01 January 2024, holiday pay calculations will be simplified for those working irregular hours. Here’s what you need to know about how the new laws will affect your organisation.

‘Rolled-up’ holiday pay calculations – this will be permitted for those working irregular hours from 01 January 2024. If you want to roll up holiday pay for individuals working irregular hours (you don’t have to!) you will be able to uplift their hourly pay by 12.07% to take account for their holiday.

An example – an employee has worked 20 hours in one pay period (such as a month) at a rate of £12 per hour. You want to include payment for holiday accrued during that period (rolling up their holiday). From 01 January 2024, you can pay them £268.97 for that pay period (which includes an uplift of 12.07% on the £240 they would have otherwise been due).

Get in touch if you require our advice and guidance on these changes and how they’ll impact your organisation directly. You can also access our free, online holiday pay diagnostic tool here and answer seven simple questions to see how the changes affect you.

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 holiday pay from 01 January 2024 – part one

Posted On: December 20th, 2023By |

If your workers’ and employees’ pay varies (perhaps due to commission, overtime or something else) new laws from 01 January 2024 will affect your organisation. Here’s what you need to know.

First four weeks’ holiday pay – from 01 January 2024, holiday pay for the first four weeks of holiday taken by workers and employees with variable pay must be calculated to include overtime, commission, and payments for length of service, seniority or professional qualifications. 

Remaining holiday pay – any holiday pay in excess of four weeks will not legally need to include the variable elements of pay (such as commission and overtime). Of course, you can choose to include variable elements for all holiday pay calculations if you want to avoid the admin burden of splitting it out.

Case law – tribunal decisions already meant that holiday pay should be calculated in accordance with what this new law requires, but this is the first time we’ve seen it set out in legislation. Many employers have, until now, taken a view as to whether to calculate holiday pay in this way.

Penalties – those who ignore the law from 01 January 2024 can expect potential claims for unlawful deductions from wages. These claims can go back as far as two years.

Get in touch if you require our advice and guidance on the changes and how they’ll impact your organisation directly. 

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.

Avoiding chaotic redundancy consultation

Posted On: December 11th, 2023By |

A new Employment Appeal Tribunal (EAT) case is a reminder of the importance of good consultation during a redundancy process.

Background

The claimant (and his colleagues) were not consulted about redundancy proposals. The employer started their processes with pooling and scoring. The claimant’s dismissal was unfair due to the lack of early consultation about the redundancy proposals (amongst other reasons).

Practical takeaway

Start early – this case is a reminder that you should start consultation at an early stage, ensuring enough information is being provided and enough time is given for employees to respond (and for those responses to be considered carefully).

Correcting the past – interestingly, the EAT held that the employer’s appeal (held at the claimant’s request) could not correct the lack of consultation which should have happened with the workforce at a much earlier stage.

Purpose of consultation – the case again reminded that consultation should be all about avoiding dismissals or reducing the impact of redundancies. The lack of early consultation meant this was not possible, therefore making the process unfair.

Get in touch if you’re having to consider making redundancies – we’ve got solutions to support.

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 law: rolling up holiday pay to be lawful again (for some) and other new laws

Posted On: November 13th, 2023By |

There’s a new draft statutory instrument (The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023) which is likely to mean a major change in the approach to rolled-up holiday pay amongst other new laws.

These new laws (including the rolled-up holiday pay changes) will likely come into force on 01 January 2024. Here’s what you need to know:

Rolled-up holiday pay

Rolling up holiday pay (12.07% of pay) will be lawful for part-year workers and individuals working irregular hours.

What needs to be included in holiday pay

Holiday pay must include commission and other payments (such as overtime payments). This means holiday pay will become more expensive for those not currently including those elements.

Record-keeping requirements

Additional working-time record-keeping requirements will be removed. They currently state that working hours and rest records must be kept for all – even those who work regular hours.

TUPE consultation

You’ll be able to consult with employees directly rather than through representatives when there is a small TUPE transfer (fewer than 10 employees), or the business undergoing any size of TUPE transfer has fewer than 50 employees.

EU case law

EU case law is being enshrined into UK law so that:

  • All statutory leave can be carried over to the following year if the reason the employee didn’t take it was because they were on family-related leave
  • Four weeks’ leave (the statutory regulation 13 leave) can be carried over for up to 18 months where the worker can’t take it due to sickness or because they’ve not been given the opportunity to take it (or haven’t been reminded that any untaken leave will be lost).

There are lots of new laws to digest so here’s how we’re helping:

Video – Stefan Mars (Head of Legal) has recorded a 30-minute update summarising all of the new laws coming into force and how to deal with them practically – available to access here later this week.

Summary – we’re producing a one-page summary as a reference tool to remind you about the changes – you’ll receive an email to download directly.

Diagnostic – we’re producing a diagnostic tool so you can work out whether the change in holiday laws will affect you – you’ll receive an email to access the tool.

Documents – we’re updating our documents to ensure the changes are all in place on the date of the legal change. If you subscribe to Intelligent Employment you’ll receive notification by email. If you don’t currently access the service and want help with the changes, get in touch 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.

New duty to prevent sexual harassment

Posted On: November 2nd, 2023By |

The Worker Protection (Amendment of Equality Act 2010) Act 2023 has received Royal Assent and will introduce a proactive duty for employers to take reasonable steps to prevent sexual harassment at work.

Employees already have a right not to suffer sexual harassment at work. This Act introduces a proactive duty on employers to take reasonable steps to prevent it from happening in the first place. What will this mean in practice?

What are ‘reasonable steps’

We’ll need a Statutory Code of Practice from the EHRC for guidance on what constitutes ‘reasonable steps’ but it’s safe to assume that training and appropriate policies and reporting procedures will be high on the list.

Tribunals are already keen to call out ‘tick box’ and ‘stale’ training in this area, so ensuring regular, high-quality training is paramount. We can help – get in touch.

Compensation uplift

A breach of this new duty won’t give rise to separate claims, but, it will give tribunals the power to apply an uplift of up to 25% on any compensation awarded if it finds an employee has been sexually harassed at work and the employer has not taken reasonable steps to prevent it from happening.

Compensation for sexual harassment claims is uncapped so this could have a significant financial impact.

No third-party harassment

The Act was expected to introduce a duty on employers to protect employees from third-party harassment (by customers and clients, for example) but this has been removed and will not come into force.

Timescales

The Act is expected to come into force in 12 months.

Get in touch if you’d like to have a chat about how we can support you with training in this area. 

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.