Facts Without the Fear: Employment Law/Case Round Up

Facts without the fear - employment lawAs many of you will be aware, there are increasing numbers of businesses in the UK seemingly offering all HR and H&S support for free – employee handbooks, policies, HR support, H&S support, even Tribunal support. But of course, there is always a catch and no business can run on empty – revenue has to come from somewhere.

Of course, those of you who are street smart will say that no sales person is going to con you into an insurance or an expensive 3 or 5 year contract you probably don’t need but we challenge you not to be affected when the selling is so often based on fear – ‘you will be sued’, ‘you need to know this’, ‘the law requires that’, ‘a surge in tribunal cases’, ‘penalties for business’, ‘directors can be jailed’ and the list goes on…

How easy it is for organisations (and governments some might say 😊) to manipulate our emotions and, in this case, make us doubt ourselves. There is probably a whole article on that given the anxiety and fear the population has been experiencing across the past 2 years. Another time we promise but, in the meantime…

Our 6 most practical legal advice tips are:

  • Check in with ACAS if you want to double check your facts or the law – their service is free (just make sure it is really ACAS you are talking to, not someone who dresses themselves up as ACAS)
  • Get your line managers to sense check with HR or the directors of the company if they want to dismiss, discipline etc. well ahead of meetings to ensure that a fair and legal process is being followed. Use colleagues as valued sounding boards.
  • Never dismiss anyone on the spot – Instant Dismissal is a myth – it usually takes at least 2 weeks to follow the correct procedure.
  • Never believe that a Verbal Warning is verbal – another myth – all verbal warnings given as part of your disciplinary process need to be recorded in writing for you to be able to demonstrate you have followed a fair and correct process
  • Treat people with respect, even if you are disciplining or dismissing them, and they are far less likely to sue you or bring a grievance or other complaint. A conflict free workplace means you free yourself up to focus on the good stuff!
  • Listen before you speak – we have a tendency to speak before truly listening to other people – whether it is H&S concerns, performance issues, wellbeing, productivity, insufficient line management etc. take time to listen, (really genuinely and openly listen) and you might just find that you start solving the right problems rather than wasting your time going down rabbit holes.

Back to our topic of today though – employment law – we shall attempt to present the facts without the fear. Covering just a couple of topics today:

  • Flexible working
  • Redundancy and maternity
  • COVID dismissals
  • 4-day weeks

Flexible working

Employers have a duty to consider flexible working requests and we have seen a flurry of high-profile cases recently where employers are deemed to have got this wrong…

Last year Alice Thompson was awarded £185k after her employer Manors Estates (Mrs A Thompson v Scancrown Ltd T/A Manors) refused to agree to her flexible working request on the basis they could “not afford for her to work part time”. This decision left Mrs Thompson with no choice other than to resign from her job, given her family commitments.

She claimed for indirect sex discrimination ( ‘a rule, policy or practice which someone of a particular sex is less likely to be able to meet and places them at a disadvantage to the opposite sex’ )

The tribunal found that her employer had failed to properly consider her flexible working request. A simple refusal to consider flexible working the tribunal said has an indirectly discriminatory effect on women who historically have to juggle childcare responsibilities and work. Mrs Thompson was awarded just under £185,000 for loss of earnings, loss of pension contributions, injury to feelings and interest.

What we can learn from this case: Whist this award is much higher than you might expect given the Vento bands that are used to determine injury to feelings payments, the important thing to take away here is that a simple refusal to consider a flexible working request is not considered acceptable.

So take time, ask for details, meet with the employee to discuss fully and consider it properly after the meeting. Ensure consideration is given as to whether the employee making the request may have a protected characteristic and are therefore likely to suffer a disadvantage as a result of the request being turned down. Inform the employee of the decision. No simple rejections leaving you no defence as to why you took the decision you did should you reject the flexible working request.

In another case (Mrs C Daly v BA Cityflyer Ltd) Mrs Daly, who was a British Airways cabin crew member had asked to work set days given her childcare needs. She was awarded more than £38,000 – again, for indirect sex discrimination.

The tribunal concluded that her employer had “barely” engaged with her proposal and suggestions and whilst they had discussed various options, none of this was shared with Mrs Daly. The Judge heard that no flexible working requests had ever been granted for in-flight business managers (this person acts as the line manager for all the cabin crew on each flight).

What we can learn from this case: Just because you couldn’t see how to make something work last year does not mean that still not finding a way to make it work is okay this year. The world is moving on and with it the expectations of employees, society and Tribunal Judges! Anyone in your team, or any of your managers, struggling to adapt to changing times? They might just be your Achilles heel!

The right to request flexible working is a statutory (i.e legal!) entitlement and employers  must give requests due consideration and deal with them in a ‘reasonable manner’.

Redundancy and Maternity – is this on your radar?

An important employment legislation change that has been proposed relates to Pregnancy and Maternity regulations. The Pregnancy and Maternity (Redundancy) Protection Bill 2019-21 aims to prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or leave, except in specified circumstances; and for connected purposes

Currently, pregnancy and maternity are protected characteristics under the Equality Act 2010. This means that a pregnant woman, or a woman on maternity leave should not be treated unfavourably or victimised due to her pregnancy or maternity leave from the beginning of pregnancy to returning to work. Pregnant women or women on maternity leave are also protected from unfair dismissal on this basis under the Employment Rights Act 1996 which deems dismissal for pregnancy or maternity automatically unfair.

The bill proposes that legally, a woman could not be made redundant from the start of pregnancy until 6 months after returning to work (unless the employer is closing the business or ceasing to work in that area). Women who experience a miscarriage would also be protected for 6 months after their pregnancy ends, or after the end of any entitled leave.

Currently, if a pregnant woman’s job is at risk of redundancy, then any suitable available vacancy should be offered to them without a need to conduct the usual selection process or compete with other candidates for the role.

Whilst this is not yet law – we hope this is now on your radar!

Don’t neglect those who are absent during redundancy consultation:

Anastasia Rodin was awarded £40,000 by the Employment Tribunal after being dismissed whilst on Maternity Leave. Her employer failed to continue to pay her Statutory Maternity Pay and told to go to the ‘Job Centre’ for future money.

If you are undertaking redundancy consultations or any change management processes it is vital that you ensure anyone who is pregnant or might be absent due to maternity leave are factored into your discussions. It is vital that Employers adhere to their legal obligations here and understand what rights pregnant women and those on maternity leave have.

The Equality and Human Rights Commission has evidenced that unfortunately 1 in 5 pregnant women experience harassment at work due to their pregnancy or flexible working requests.

COVID dismissals

We have waited for some time for some tribunal decisions around COVID – absences, masks etc.

Let’s first look at Gibson v Lothian Leisure. This employee did not have 2 years’ service and so could not claim unfair dismissal. However, don’t forget that employees with less than 2 years’ service can still claim automatic unfair dismissal due to a statutory breach.

The claimant worked as a chef and was furloughed in March 2020 when his restaurant closed temporarily. Prior to the planned reopening of the restaurant, the claimant was asked to return to work. He was concerned about the possibility of contracting COVID-19 and passing it on to his clinically vulnerable father. He alleged that his employer did not provide PPE for staff and indicated that it had no intention of creating a ‘COVID-secure’ working environment.

When he raised concerns with his employer, he was told to “shut up and get on with it”. His employment was subsequently terminated by text message from one of the directors. The text suggested his dismissal was due to redundancy. He was not paid notice or holiday pay or redundancy pay given that he didn’t have two years’ service.

The employment tribunal upheld the claim of automatic unfair dismissal. His raising concerns about the lack of PPE was considered to be a key factor in his dismissal. He was awarded £14,500 plus contractual entitlements such as notice pay and holiday pay.

Also, we have Ham v Esl Bbsw Ltd.  A tribunal found a cleaner had been automatically unfairly dismissed after he raised concerns about being asked to attend at the house of his manager who was self-isolating due to having symptoms of Covid-19. He was awarded 12 months’ salary.

Unsuccessful claim – remember that many claims are successfully defended!

In Rodgers v Leeds Laser Cutting Limited the employee’s concerns centred on the risk of infecting his vulnerable children should he contract COVID-19 at work. Mr Rodgers worked as a laser operator in large premises with just five people typically working. His employer had carried out a risk assessment and the business was operating a number of COVID secure working practices including social distancing, wiping down surfaces, use of masks and hand-washing. There was full consultation/discussion with staff about these measures.

Mr Rodgers messaged in saying he could not return to work until lockdown had eased as he had vulnerable children. He obtained a self-isolation note from the NHS 111 service that covered him until 3 April 2020 but he did not return to work on that date and his next communication with his workplace was on 24 April when he found out he had been dismissed. He brought a claim for automatically unfair dismissal.

The Employment Judge decided the statutory protection on the grounds of serious and imminent danger did not apply. Whilst Mr Rodgers was genuinely concerned about the risk to his family, the Tribunal did not accept there was serious and imminent danger in the workplace. Added to which the employee had not communicated his concerns about safety nor explained his continuing absence.

4-Day week

With many organisations rethinking where and when to work, we thought a few thoughts about a 4-day week might be useful…

The UK has now launched a pilot scheme, starting in June 2022, to see if a 4-day week could work… so far about 30 companies have signed up.

Amongst many others, especially in manufacturing, Elektra and CMG Technologies have both been operating longer working days (but shorter weeks) for several years. CMG told i News that four longer days were definitely preferable to five shorter ones – with staff sick days dropping dramatically, and employee retention incredibly high.

No country in the world currently has a blanket, four-day workweek policy for 100% of workers. However, Iceland reported ‘overwhelming success’ when 1% of its workers trialled a shorter week from 2015 to 2019. Many reported a ‘dramatic increase’ in personal wellbeing – and businesses found they did not lose money, while productivity stayed the same or even improved. Since the initial results were revealed, it’s believed 86% of Icelandic workers are now ‘working shorter hours or gaining the right to shorten their hours’ – without a cut in pay.

Generally speaking, other Nordic countries – like Finland and Denmark – are hailed as having an ideal approach to work-life balance. Usually, this includes fewer hours – and a culture where it is expected you’ll leave the office on time – though naturally not for every role. Also, Spain and New Zealand have both introduced (ongoing) pilot schemes for a 32-hour workweek.

So… is it inevitable that all businesses will have to adapt and change and that a 4 day week will be normalised by the end of this decade? If only we had a crystal ball so we could do some resource planning! What we can tell you though is that if you have any senior members of your team who struggle to adapt to our fast-changing world, then now is the time to get them one-to-one coaching. Don’t leave them behind and don’t let them become the dinosaur that too many fingers point out saying ‘why are they still here’?

Thanks for reading. In our next blast we will look at a few more topics of employment and case law to keep you up to date and will also give you a quick overview of who sits where on the remote working/hybrid working fence!

In the meantime, we have a few open courses coming up that a few in your team may value:

And L&D enquiries coming through to Jaluch at the moment (eLearning, online or in-person) are focussing on:

And…a slightly more specialist/unusual topic:

Please do call us 01425 479888, and we’d be delighted to support.

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