Employment Law Bulletin - October 2023

The Workers (Predictable Terms and Conditions) Act 2023 has received Royal Assent and is expected to come into force around September 2024. As the name suggests, it allows workers to request a more predictable working pattern, so tarot cards and tea leaves can be reserved for Halloween. The framework is somewhat similar to the Flexible Working process, with the key points to note as follows:

• A request can be made by workers with unpredictable working patterns (e.g., those on a zero hours contract), those working on a fixed term contract and agency workers.

• It is expected that those making a request will need 26 weeks’ service with the employer (this is still to be confirmed). There will not be a requirement for these 26 weeks to be continuous service.

• Up to 2 requests can be made in a 12-month period.

• When making the request the individual must explain the change they are requesting and the date they want it to take effect. The request could relate to hours of work, days of work or the period for which they are employed.

• An employer must give reasonable consideration to the request and reply within one month with a decision.

• There are specific grounds that can be given for refusing the request, such as the burden of additional costs or a detrimental impact on the ability to meet customer demands.

• If a request is accepted the new terms must be offered within two weeks of granting the request. An employer will not be allowed to make detrimental changes to other elements of the contract in return for approving the request for predictability.

ACAS will be producing a draft Code of Practice in the near future, which will go out for consultation. ‘Creep’ an eye out in future newsletters for how to have your say. In the meantime, employers have the opportunity to begin updating policies and preparing training for line managers to reflect this new right.

Over recent years we have seen an increase in discrimination claims relating to the menopause. These claims have focused on disability, age or sex. In this case the employee was successful in establishing that her menopausal symptoms amounted to a disability, and that she had been treated less favourably as a result.

In Lynskey v Direct Line Insurance Services Ltd [2023], Mrs Lynskey was struggling to meet the required performance standards in her role as a tele-sales consultant. She had previously performed well in her role for a number of years, but the onset of the menopause in 2019 led to symptoms including low mood, anxiety, mood swings, poor memory, and poor concentration, which impacted upon her work.

She was moved to a different role where the targets and requirements were less demanding, but her performance was still not satisfactory. She was told that she would not receive a pay increase because her performance had been rated as ‘need for improvement’ and a performance management process then started, resulting in a disciplinary warning.

Mrs Lynskey’s claims of less favourable treatment due to something arising from her disability and failure to make reasonable adjustments were both successful, as was her claim for constructive unfair dismissal. Although Occupational Health input had been sought, this was not done until the employee was ultimately signed off sick with stress, and the Tribunal found that eight potential reasonable adjustments that had been suggested were not in place. She was awarded close to £65,000 by the Tribunal, including £23,000 for injury to feelings.

Actions:

• For some, the menopause will not be a disability. However, for others the symptoms will be suitably serious, long-term and have an impact on day-to-day activities, meaning that the definition of a disability under the Equality Act 2010 is met.
• Where this may be the case, medical advice should be sought early on in the process and adjustments considered.
• Ensure that diversity, equity and inclusion training is up to date for line managers, and that it covers effective management of the menopause.
• Does you business have a menopause policy in place? Speak to the team for support with a skeleton draft or implementing a suitable policy.

Two important points are made in the case of Haq v United Learning Trust and others [2023]. The employee was a teacher, and there were some concerns about his teaching following lesson observations. He was affronted by the criticisms and refused to attend meetings to discuss them. He went off sick with work related stress. When he returned to work, he refused to attend meetings with senior management, threatened to bring a claim of race discrimination, and went off sick again. Through the academic year there was a pattern of long periods of sickness absence.

He then had a fit note that ended on 11 July, and a meeting was scheduled with the school management on 6 July which he refused to attend. As a result, he was dismissed. He applied for a job at another school which he did not get, claiming that ‘negative comments’ made about him by the Head Teacher in a reference meant that he was not appointed.

He was successful with his claim of unfair dismissal – the employer should have waited to see if he did return on 12 July once his sick note had ended. The Employment Judge assessed that there was an 85% chance he would have been dismissed anyway. However, the Tribunal noted that they could not be 100% certain that he would not have made a sustained and successful return to work, although this almost certainly would have become clear had the employer continued with the process and waited a few days until the employee had spoken to his GP on 11 July.

Mr Haq was also successful in his claim of victimisation. He had been subjected to a detriment because the author of the reference had believed that he was going to bring a discrimination claim against them, and this was their main motivation for providing an unfavourable reference.

Actions:

• If an employee is absent and covered by a fit note, it will almost always be best to wait and see if the employee returns when this expires before dismissing.
• Concerns about an employee can be included in a reference, but they must be objective and factually accurate. Beware in particular if considering raising issues that have not been discussed with the employee.
• Avoid a ‘howler’ and talk to us before either dismissing when there is a live fit note or submitting an unfavourable reference.

The case of Love v M B Farm Produce Ltd [2023] emphasises the importance of continuing to explore alternatives to redundancy. Although an employee may lose their right to a statutory redundancy payment, a fair and reasonable process must still be followed to avoid a finding of unfair dismissal.

The employee worked in a farm shop, which needed to close for financial reasons (whether or not it sold pumpkins is unconfirmed). She was offered an alternative role in another shop run by the farm. However, she was a nervous driver and was not familiar with the journey to the other shop and said she did not want to take the role. She was then told that she would not receive a redundancy payment because her employer considered that this was suitable alternative employment. As a result, she showed some interest in moving to the new shop on a trial basis to begin with, but the employer went on to find someone else to do the role and confirmed her dismissal.

Mrs Love was not successful in her claim for a redundancy payment. Entitlement to a statutory redundancy payment is lost if a suitable alternative role is identified and unreasonably refused.

However, she was successful in claiming unfair dismissal. Although her right to a redundancy payment may have disappeared when the suitable alternative role was first declined, the duty to explore alternatives to redundancy as part of a fair and reasonable process continued, and the employer had not found someone else to do the role until after Ms Love expressed her wish to reconsider. Ultimately, the employer should have allowed her a trial period in the role, and not rushed to dismiss her when she showed tentative interest in the alternative job.

Actions:

• In an individual consultation you must make the employee aware of any suitable alternative employment.
• “Suitable” alternative employment has a specific meaning in employment law, and it will depend upon the circumstances whether a role is a suitable alternative or not.
• Even if a suitable alternative is rejected, the duty to seek alternatives to redundancy continues.
• The law around trial periods and suitable alternative employment can be bloodcurdlingly complex, so speak with the Clarion team before deciding how to proceed.

…getting out there!

Our Executive Brunch took place at Fearns, Leeds Dock on 21 September 2023. A select group of business leaders and people managers from across the region joined us to talk about attracting, incentivising, and retaining quality candidates in an evolving economic climate, whilst juggling changing business needs and workforce priorities. The modern and relaxed backdrop (not to mention an excellent selection of mid-morning drinks and delicacies) gave the opportunity for like-minded individuals to meet, swap ideas and help kickstart the discussion around what can be a challenging topic for many employers. We heard from our Business Immigration specialist, Suzanne Treen, on some of the challenges surrounding recruitment and the use of migration and obtaining a sponsor licence to fill skill and labour gaps. Iain Anstess, Partner at Q5, also joined us to give some insight into addressing the evolving work landscape while seeking to build a healthy working culture. Finally, our Corporate expert, Sarah Harrison provided some food for thought on how to put in place staff incentive schemes to retain top talent. The team has a wealth of expertise across the employment relationship from start to finish, whether it’s recruitment, attracting talent from overseas, contracts, policies, performance and absence management, redundancies, exits, dismissals, or anything else. We also work closely with our corporate team to support on mergers and acquisitions. We host a number of events for HR professionals, business owners, people managers and leaders of all levels throughout the year, and hope you can join us at the next one.

In the last couple of weeks, we hosted two webinars: one on handling disciplinaries effectively for our Rising Stars programme and the second our annual employment law update. If anyone missed the webinars and would like the recordings, please get in touch. We have listened to your feedback about the topics you’d like to hear about in the future and we will be in touch soon to let you know about our next in person events and webinars.