Since our last bulletin, several pieces of employment legislation have hit the statute books. Secondary legislation will be required to enact much of the detail but now that there is more certainty around the legal requirements, employers can consider how this will affect them and what changes they will need to make to their policies. Here is a brief summary of some of the legislation:
1. Neonatal Care (Leave and Pay) Act 2023
Eligible parents will be able to take up to 12 weeks leave if their baby is admitted to neonatal care following birth. This leave is in addition to maternity and paternity leave. Employees with 26 weeks continuous service will be eligible for statutory pay. This legislation is unlikely to take effect until April 2025.
2. Carer’s Leave Act 2023
Those employees responsible for caring for dependants with long-term care needs will be able to take a week’s unpaid leave within a 12-month period. The leave can be taken as individual days or half days. Long-term care is defined as someone needing care for more than three months; having a disability under the Equality Act; or as a result of old age. April 2024 appears to be the most likely date for this legislation to take effect.
3. Protection from Redundancy (Pregnancy and Family Leave) Act 2023
The Act introduces a ‘protected period’ within which pregnant employees will be protected from redundancy. Although the actual timeline is still to be determined (via secondary legislation), all the indications are that this period will run from when they announce their pregnancy to up to six months after they return from maternity leave. Protection is also to be extended to employees who have suffered a miscarriage.
Parents taking shared parental leave and adoption leave will also have six months protection from redundancy from the time they return from SPL / adoption leave. In addition, parents on maternity, shared parental or adoption leave and facing potential redundancy must be given priority if another suitable vacancy is available. The Act is likely to come into force in April 2024.
4. Flexible working
The Employee Relations (Flexible Working) Act received Royal Assent in July 2023. Notably, one of the most widely publicised proposed changes to give employees a day-one right to request flexible working is not included. It is anticipated that this will be created via secondary legislation (with no timetable indicated as yet). However, what the Act does include is an employee’s right to submit up to two flexible working requests per year; an explanation of the impact of their request is no longer required; employers must consult with the employee before refusing a request; and employers must respond to a request within two months. Readers may be interested to know that Tesco has already introduced a day-one right to request flexible working.
5. Sexual harassment
Although the Worker Protection (Amendment of Equality Act 2010) Bill has yet to receive Royal Assent, the House of Lords has made some significant changes including the removal of the clause that makes employers liable for harassment by third parties and they have also amended the duty on employers to prevent sexual harassment by requiring them to take ‘reasonable steps’ to do so rather than ‘all reasonable steps’.
AI in the workplace
In advance of the government’s response to the consultation on its White Paper on regulating AI (which closed in June), the House of Commons library has published a research briefing paper on AI and employment law. Having noted that AI is used in three main areas (recruitment, performance management, and workforce monitoring), it raises the following points:
a. The common law understanding of the relationship between employer and employee is based on mutual trust and confidence, therefore employers must be able to justify any decisions affecting employees. As such, there will be a limit on the extent to which any decision-making can be delegated to AI.
b. AI may not be able to recognise bias – or may even perpetuate bias – potentially undermining equality law.
c. Use of AI to monitor employees could be restricted by the Human Rights Act 1998 that governs the use of surveillance tools.
d. Under data protection legislation, individuals have the right not to be subject to a decision based solely on automated processing. This could lead to a major restriction in the use of AI decision making by employers.
As we have pointed out previously, although the use of AI is not new in the field of employment, the extent to which it can now be deployed has not only increased substantially, but there is much greater awareness of its use among the general public. This could lead to more challenges by employees where they suspect – or know – that AI has been used in decisions that adversely affect them. We will continue to report on this rapidly evolving area but, in the meantime, we recommend considering the impact of AI across all your HR policies and adjusting accordingly.
Updated Acas guidance
Sickness absence
The sickness absence section of the toolkit on managing absence and leave generally has been updated. You can now find additional information and help on managing the following:
• checking holiday entitlement and sick pay.
• fit notes and proof of sickness.
• time of for dependants/parents.
• returning to work after absence.
• creating absence policies.
• recording and reducing sickness absence.
• absence trigger points.
Mental health
It is not always clear what constitutes reasonable adjustments to meet employees’ mental health concerns. This Acas guide uses examples and case studies to illustrate how employers and employees can work together to find the right adjustments to help promote positive mental health in the workplace.
Case update
Ponticelli Ltd v Gallagher: A share incentive scheme was integral to the employees’ package and so transferred under TUPE.
Although this TUPE case was decided in the Court of Session in Scotland, the outcome is relevant in England & Wales as the same TUPE regulations apply. The case concerned whether an employee’s existing right to participate in a share incentive scheme (SIP) should transfer under TUPE even though this right to participate was not in his contract of employment.
When employed by Total, Mr Gallagher joined the company’s SIP. After his part of the business had been transferred to Ponticelli, the latter decided it was not going to offer a SIP so offered Mr Gallagher one-off compensation in lieu which he rejected. He argued that Ponticelli was obliged to offer a similar scheme under TUPE. This was upheld by both the ET and EAT so Ponticelli appealed to the higher court using a previous case which had successfully argued that a share option plan did not transfer with the employees under TUPE because it was separate from their contracts of employment.
The SIP was integral to Mr Gallagher’s financial package so the Court of Session ruled that Ponticelli was obliged to provide Mr Gallagher with something substantially similar otherwise he would be at a financial disadvantage.
AECOM Limited v Mallon: - Obligation on employer to make adjustments during the application process.
Mr Mallon brought a claim against AECOM for failing to make reasonable adjustments to accommodate his disability (dyspraxia) during a job application process. Candidates were required to apply online, something that Mr Mallon, due to his dyspraxia, struggled to do. He asked if he could apply via telephone but did not articulate which part of the online process he found difficult. AECOM’s HR Manager emailed in response but he failed to reply and, as a result, was not offered an interview. His claim that the company failed to make reasonable adjustments to accommodate his dyspraxia was upheld by the ET.
AECOM appealed on the basis that they could not reasonably know that he had a disability as he hadn’t told them as much. The EAT upheld the ET’s ruling, finding that Mr Mallon’s request to apply via telephone rather than online and his subsequent failure to reply to the HR Manager’s emails indicated that he found written communication difficult, which they could have discovered had they made further enquiries.
This case underlines that employers need to be proactive if it is clear that an individual is struggling to navigate an application process easily and should establish if they need to make reasonable adjustments.
United Taxis Ltd v Comolly: dual employment and worker status
In a rather unusual case, a taxi driver, Mr Comolly, brought a claim to establish his employment status in respect of work he carried out as a driver for United Taxis and separately for Mr Tidman, one of United Taxis’ shareholders. The ET found that he was both a worker and an employee respectively for two different employers, namely United Taxis and Mr Tidman, although he carried out the same work for both.
The EAT differed in its assessment, finding that Mr Comolly could not be employed under two contracts to two employers to do the same work. The EAT ruled that Mr Comolly was a worker as he had the freedom to turn work down and do as much as he wished during the hours Mr Tidman made the taxi available to him. This case has confirmed earlier rulings that ‘dual employment’ i.e., two separate jobs for the same employer was not legally possible.
It is common knowledge among HR professionals that, in order to dismiss someone fairly, a proper procedure must be followed. In this particular case, an employee of the bank who made a serious breach involving disclosure of personal customer data was dismissed for misconduct by her manager who did not attend the disciplinary meetings. As a result, Ms Charalambous brought a claim for unfair dismissal.
The ET found the dismissal was fair and that the correct procedures had been followed despite some ambiguity as Ms Charalambous’ line manager had two roles both of which were pertinent to the process. Nevertheless, she was given ample opportunity to make her case and was accompanied to the disciplinary meetings by her trade union rep. The EAT upheld the ET ruling although it acknowledged that, ideally, the person making the decision to dismiss should be present at the meetings. However, what was of primary importance was the chance for the individual being disciplined to make their case clearly.
This case focused on whether or not the claimant suffered harassment even though he was not aware of the harassment at the time. Mr Greasley-Adams, who suffered from Aspergers Syndrome, had been accused by fellow workers of bullying. The subsequent investigation into his behaviour, revealed that certain derogatory comments had been made about him by colleagues. He claimed harassment on the basis of his protected characteristic, namely disability. The ET found that he could not have suffered harassment if he was not aware of it at the time. The EAT agreed with the ET, noting that it was inevitable that comments would emerge during the investigation that the claimant would not like and it was “not in our view reasonable that the ‘unwanted conduct’ should have the proscribed effect …”. This case confirms that a claim for harassment can only occur at the point the subject of that harassment becomes aware of it.
After leaving the South Yorkshire Police after 17 years, which included a 12-month period of sickness absence leading to the termination of his employment, Mr Connor brought a claim for unlawful deduction from wages, on the basis that his pay for accrued but untaken annual leave had not been correctly calculated.
Such leave can be calculated according to a ‘relevant agreement’ but in this case, the EAT determined that any such pay cannot be less than the employee would have received during the normal course of their employment. Calculations must be based on the statutory minimum of 5.6 weeks as per the Working Time Regulations (and not contractual leave which may exceed this minimum). This is yet another case clarifying how unused holiday pay should be calculated when an employee leaves their employment.
In brief
Whistleblowing framework review
In March, the government launched a review of the law governing whistleblowing. One of the incentives for doing so was a large increase in the number of people making protected disclosures during the pandemic. The review intends to establish a number of issues including how well the current legislation is working for those making disclosures and how well they are protected; is information about whistleblowing easily accessible to anyone wanting to make a disclosure; and how employers and prescribed persons respond to whistleblowing procedures. You can find more information on gov.uk.
Parental Leave and Pay
Parental leave and pay was originally covered by the Good Work Plan and the government consulted on the proposals in 2019. The government has finally responded and has stated its intention to give employed fathers and partners the right to split their two weeks’ leave into blocks of one week; the right to take their leave at any point in the first 12 months of their child’s life rather than in the first eight weeks; and introduce more flexibility around the notice requirements. Clearly the changes are not imminent but it does give employers plenty of notice to review what impact they might have on the workplace and to consider what changes need to be made to their relevant policies.
BSI menopause standard
Employers who have been considering introducing a menopause policy, or who have already done so, might be interested to know that the BSI launched its workplace standard (BS30416) for menstruation, menstrual health, and the menopause over the summer. The standard provides examples of good practice including policy guidance, work design, workplace culture, and the workplace environment. You can find more detail and the link to the standard here.