Employment Update from Hunter Adams – Q1 2023

Proposed Menopause reforms

In our Q2 2022 employment update, we touched upon the subject of menopause and the increasing focus that has had in the last few years. The Women and Equalities Committee submitted a report to the UK government in 2022 which included a number of recommendations to support menopause in the workplace. The government have since reviewed this report and whilst it rejected some recommendations, they have committed to appointing a ‘menopause employment champion’ to work with organisations to help increase awareness, good practice and menopause guidance to employers. In addition to this, the government have also committed to creating an awareness campaign that focuses on menopause in the workplace.

As a minimum, it is expected that the reform will require employers to have a specific leave policy and procedures in place to support women going through the menopause.

If you would like to get ahead of the curve and review the work environment, current policies, introduce a new policy and/or roll out awareness sessions within the wider employee group and need assistance, please get in touch for further guidance and support.

Government consultations

In recent months, the UK government have launched a number of consultations that seek input from the general public, including but not limited to employees, employers, HR and employment practitioners, and Trade Unions. Consultations include but are not limited to:

Fire and Rehire: In light of the mass dismissals involving P&O Ferries, the Department for Business, Energy and Industrial strategy (BEIS) published its draft Code of Practice on fire and rehire for public feedback on its content. The Code is designed to set out best practice in regard to how employers should approach changing terms and conditions of employment. It is noticeable that there is particular emphasis on the need for employers to meaningful consult with employees, and that they are transparent and open. The Code also covers best practice in the event that agreement is not reached which includes but is not limited to the requirement for the employer, in light of potentially serious consequences for employees, to actively re-examine its business strategy and justification for the proposed change.

Where an employer proposes multiple changes to terms and conditions, the Code sets out the recommendation for such changes to be implemented, where reasonably possible, over a period of time, and that the initial proposal is kept under review so the original terms and conditions can be re-introduced if the proposed terms become irrelevant.

The Code is also clear that fire and rehire should be a last resort, and dismissal should not be used as a threat or a negotiating tactic.

Where dismissal is an outcome and an employer has failed to follow the Code, this will be taken into consideration by a tribunal, and where it is deemed that an employer has unreasonably failed to comply with the Code, this could result in an uplift to any award of up to 25%.

The BEIS consultation remains open until 18 April 2023 and can be accessed here.

If you require any support with proposing changes to terms and conditions of employment, please get in touch to further discuss.

Holiday pay: Further to our Q4 2022 employment update, the holiday pay saga continues. Following the Supreme Court’s decision in Harpur Trust v. Brazel last year, which found that part-year workers should not have their holiday pay pro-rated by the proportion of the year they have worked, the government have launched a consultation in an attempt to understand this anomaly and the practical implications of this judgement.

The consultation proposed an alternative approach, in which the length of the holiday entitlement reference period should mirror the length of the current holiday pay reference period, that being a period of 52 weeks.

The consultation closed on 9 March 2023, so we expect an update on the output of the consultation later this year.

Data Protection: The Government has announced its intention to replace the UK General Data Protection Regulation (GDPR) with a British data protection system in the form of a Data Protection and Digital Information Bill.   As an initial step, the Information Commissioners Office (ICO) have undertaken two consultations (which closed in January 2023). One of the consultations focused on monitoring workers and the second focused on processing workers’ health data.

These consultations are part of an ongoing project to replace the ICO’s employment code of practice with the aim to publish new guidance to support employers in understanding their obligations and responsibilities under data protection law. The ICO plan to create one easily accessible place where both employers and employees can find answers to questions about data protection.

Now that the consultations are closed, a further update is expected later this year.

Now that the Brexit transition period is well and truly in the past, we recommend that existing Privacy Notices are reviewed to ensure that they are up-to-date and compliant with current legislation. If you require support reviewing and updating your Privacy Notice, please get in touch.

Change to terms and conditions: Pension Impact

In light of the increasing focus that the Gender Pay Gap has had in recent years, a report published in partnership with the Institute for Employment Studies has found that more than a third of women reduce their contracted hours for a prolonged period and about a fifth opt out of a workplace pension. It also states that women are more likely than men to fall under the auto-enrolment threshold.

The report has therefore recommended that the government establish a legal duty for employers to inform employees about the impact changing working hours or other key contractual terms can have on their pension.

Currently employers do not have such a legal duty, but despite this, employers should consider what additional information they can provide to employees when making contractual changes that impact the employee’s pension.

Don’t forget to engage with your pension provider and tap into the wealth of external resources that you can sign-post your employees to.

Employment Tribunal

An employee argued that he had been unfairly dismissed following disciplinary action taken against him which resulted in him being dismissed for gross misconduct on the basis that he had fundamentally damaged the relationship with his employer. The employee appealed the dismissal, the appeal was not upheld.

The grounds for the disciplinary action primarily stemmed from the employee raising 7 grievances in a period of 13 months. Many of the employee’s grievances were raised on the basis that he had been excluded from meetings with senior managers that he thought he should have attended. The grievances could not be informally resolved, partly due to the employees wish to discuss his grievances informally with his line manager who had no authority to resolve concerns about more senior managers. The employee was given a date by which to decide whether he wished to proceed to the formal stage of the Grievance procedure. The employee responded by raising another grievance that he was being subjected to an “arbitrary deadline” and asked for it to be withdrawn.

The employee refused to progress any of the grievances to the formal stage, but neither did he withdraw the grievances.  The employee was clear that despite refusing to progress the grievances to a formal stage, he did not wish to  “give up his ability to do so” as he had a similar concern about another incident.

The employer invited the employee to a grievance hearing but the employee refused to attend despite being informed that attendance was considered to be a reasonable instruction. The grievance hearing proceeded and the grievance was not upheld.

The employee was informed that if he continued to raise grievances about this matter, he may be disciplined, this response in itself triggered the employee to raise a further grievance in which he alleged that he was being bullied and victimised.

Out of the 7 grievances raised, only 1 of the grievances was formally resolved, and the employee was invited to a formal grievance meeting in an attempt to progress the remaining unresolved grievances. The employee refused to attend the meeting.

The employer considered the employee’s conduct amounted to gross misconduct due to him raising numerous vexatious and frivolous grievances and because he had refused to comply with a reasonable management instruction to attend the grievance meeting.

The employment tribunal found that the dismissal was fair, however, the employee appealed this finding, and amongst other statements argued that the tribunals conclusions were perverse. The employment appeal tribunal (EAT) rejected the appeal and disagreed with the employee.

The EAT established that an employer cannot be expected to leave concerns unresolved for an unlimited period of time on the basis that this would ‘destroy its ability to address legitimate concerns promptly and to ensure the well-being both of the employee raising the grievance and of those who may be the subject of the grievance’. Applying that principle to these facts, the tribunal found that the employer had acted reasonably in the face of the employee’s determination to undermine the grievance procedure.

Under section 98 of the Employment Rights Act 1996 an employer must act reasonably before dismissing an employee for misconduct and the employer must show:

  1. they must have a genuine belief in the misconduct
  2. which they reached on reasonable grounds
  3. they must have conducted a reasonable investigation; and
  4. the dismissal must fall within the range of reasonable responses available to the employer

This decision doesn’t give other employers the autonomy to discipline or dismiss employees who repeatedly complain, as a grievance cannot be rejected on the basis that any previous grievances lacked material substance. An employee may have a genuine and valid grievance and this wouldn’t be known unless the matter is fairly and thoroughly investigated in line with the ACAS Code of Practice.

2023 expected legislative updates

Whilst some of these items have been on the agenda for some time, we expect to receive an update from the government in respect to the following:

  • On 5 December 2022, the government announced that the right to request flexible working will be extended to all employees from day one of employment.   The proposal also included reduction in time for the decision period from three months to two, and the requirement for employees to detail what effect the change may have and how it could be managed, will be removed. We continue to wait to find out when this change will take effect, but we will keep you up to date so that you can amend your documentation and processes in time.
  • The Protection from Redundancy (Pregnancy and Family Leave) Bill extends the rights of protection from redundancy for women during or after a protected period of pregnancy. It is anticipated that this will apply from the point in time that they inform their employer in writing of their pregnancy to six months after they have returned from maternity leave. Enhanced protection is also proposed following a return to work after shared parental leave and adoption leave.
  • The Carer’s Leave Bill entitles employees who provide or have to arrange care to one week’s unpaid leave per year. Employees would be protected from dismissal or detriment as a result of taking such time off.
  • The Neonatal Care (Leave and Pay) Bill provides parents with a new right to paid time off if their baby requires neonatal care.
  • It is also expected that the Miscarriage Leave Bill and the Fertility Treatment Bill will move forward, providing employees a right to paid bereavement leave; and paid time off for fertility treatment.