Welcome to the Winter Employment Law Update. In our employment and HR updates, Tom Evans outlines recent cases, updates to the law and other Employment and HR news. If you want to ensure you don’t miss the latest Employment and HR you can subscribe to our Employment Law Update Newsletter.
Employers soon to be under a duty to prevent sexual harassment.
An important piece of legislation is soon to be introduced, which amends the provisions in the Equality Act 2010 to better protect employees from sexual harassment in the workplace.
In response to the #MeToo movement, the Government launched a consultation in 2019 on sexual harassment in the workplace. This consultation has now led to the introduction of The Worker Protection (Amendment of Equality Act 2010) Act 2023, which shall come into force in October 2024.
Current Law
Under the current law, an employer is vicariously liable for any acts of discrimination, harassment and/or victimisation committed by an employee in the course of their employment. An employer can dispute their liability if they can prove that they took all reasonable steps to prevent an act of discrimination, harassment, or victimisation (s109(4) Equality Act 2010). There is no legal obligation on employers currently to do anything to prevent sexual harassment in the workplace.
New Law
Under the new legislation employers will be under a new statutory duty to take pro-active ‘reasonable steps’ to prevent sexual harassment of employees in the course of their employment. If employer fail to take reasonable steps to prevent sex harassment, then a tribunal will have the discretion to award compensation uplift of up to 25%. The Act does not define what ‘reasonable steps’ actually are. However, The Equality and Human Rights Commission (EHRC) is working on a new statutory code which will likely contain guidance.
Practical tips
Ahead of the new law becoming effective in October 2024, employers should take proactive steps to ensure compliance with their enhanced duty. These steps may include;
- Reviewing and updating relevant policies and procedures to ensure compliance with new duty.
- Arranging training for employees to ensure awareness of internal company policies and procedures.
- Ensuring that there is a well communicated and clear process for employees to report harassment.
- Checking that methods for record-keeping complaints of harassment are in place and are effective.
Flexible working requests to become a day one right.
Since the introduction of Flexible Working Regulations in 2014, employees have had the right to make flexible working requests after they surpassed 26 weeks of employment. The Government is now removing the 26-week qualifying period making the right to make flexible working request a day one right. Under the Flexible Working (Amendment) Regulations 2023, the new right will come into effect for requests made on or after 6 April 2024.
The new right was not originally included in amendments to flexible working regime, introduced by the Employment Relations (Flexible Working) Act 2023. The Act has now received Royal Assent and (as discussed in our Summer Newsletter) introduces the following amendments:
- Employees must be consulted with by their employer before a request is rejected.
- Employees will be entitled to make two flexible working request per year (an increase from one per year).
- Outcomes of requests must be provided to employees within 2 months (a deceased from three months).
- When making a request, employees will no longer be required to explain the impact of their request and will no need to suggest how to mitigate the impact.
- The amendment to the Employment Relations (Flexible Working) Act 2023, does not include a right to appeal, however the ACAS code recommends allowing employees to appeal any rejected flexible working request.
- Employers need to ensure that their flexible working policies are updated to reflect the new legal framework.
Rehabilitation of Offenders
On 28 October 2023, s193 of the Police, Crime, Sentencing and Courts Act 2022 was introduced. The new legislation has amended s5 Rehabilitation of Offenders Act 1974. The new legislation has reduced the length of time an individual is required to disclose a criminal conviction to an employer.
The legislation makes the following changes on declaring custodial convictions for offenders who are aged 18 and over:
- Previously, custodial sentence of over 4 years were never spent. Now, custodial sentences of over 4 years will become spent after a period of 7 years. This amendment does not apply to convictions for serious sexual, violent, or terrorist offences, which shall continue to never be spent.
- Previously, custodial sentence of between 2 and a half and 4 years became spent after 7 years. Now, they shall be spent after 4 years.
- Custodial sentence of between 1 and 2 and a half years remain spent after 4 years.
- Previously, custodial sentence of between 6 months and 1 year became spent after 4 years. Now, they shall be spent after 1 year.
- Previously, custodial sentence of up to 6 months became spent after 2 years. Now, they shall be spent after 1 year.
It is important to note that, periods of disclosure will be extended if an offender re-offends during the declaration period. Any new conviction will be subject to its own disclosure period. Both convictions will need to be declared until the end of either the original conviction’s declaration period or the end of the new disclosure period for the more recent conviction, whichever is later.
Employers need to make sure any relevant onboarding forms and systems are updated to reflect the new time periods.
The Employment Appeal Tribunal establish principles for fair redundancy consultation.
In Joseph de Bank Haycocks v ADP RPO UK Limited, the Claimant and his colleagues were not consulted by their employer about redundancy proposals before pooling and scoring took place. In addition, they were also not made aware of the criteria for selection.
The Claimant scored the lowest of the 16 employees who were at risk of redundancy. Subsequently, the Claimant was dismissed by reason of redundancy. The Claimant was not informed of his own score or the scores of his colleagues.
The Claimant appealed against the decision to select him for redundancy, but his appeal was unsuccessful. During the appeal process he was made aware of his score but not his colleagues’ scores.
The Claimant brought a claim of unfair dismissal. The Employment Tribunal (ET) found the dismissal to be fair. The Claimant appealed the ET’s decision.
The Appeal
On 28 November 2023, the Employment Appeal Tribunal (EAT), found that the employer’s failure to consult at a formative stage render the dismissal unfair, namely the pooling and scoring took place without the employees having had input on how the employer proposed to go about this.
The EAT reviewed past authorities and established the following guiding principles for fair redundancy consultation:
- The employer should issue a warning and consult with the affected employees or their representative.
- A fair consultation takes place when proposals are given at a formative stage and employees are provided with sufficient information and time to respond. Employee’s comments regarding proposals should also be conscientiously considered.
- When conducting consultations, the employer should keep in mind that the purpose is to prevent dismissals or reduce the effect of redundancies.
- Redundancy processes must be viewed as a whole and an appeal may be used to correct an earlier error.
- It is a question of fact and degree of a situation as to whether consultation is sufficient. A consultation is not automatically unfair if there is a lack of consultation in a particular respect.
- Any specific features of consultation, such as the provision of scoring, is not essential to a fair process.
- Utilising a scoring system does not automatically make a redundancy process fair.
- Whether it is fair to reveal to an employee the scores of other employees in a pool will be determined on the facts of each individual circumstance.
Employers must ensure that they consult with employees about the proposal to make redundancies and the method of selection prior to doing so as after is too late and risks a finding of unfairness in any later dismissals.
New guidance for heat of the moment resignations
The EAT’s decision in Omar v Epping Forest District Citizens Advice has provided guidance on heat of the moment resignation. The guidance has emphasised the importance of employers objectively analysing heat of the moment resignations from the standpoint of a reasonable bystander.
In Omar v Epping Forest District Citizens Advice, the Claimant resigned from his employment in a heat of the moment resignation after having an altercation with his manager. The Claimant had previously verbally resigned twice before however, these resignations had not been treated as valid by his employer and claimant had later withdrawn his verbal resignations.
The Claimant tried to retract his latest resignation. However, his employer refused to permit the retraction and treated his employment as terminating on one month’s notice.
The Claimant brought a claim of unfair dismissal. The ET found at the Claimant had resigned, and therefore his claim was dismissed. The Claimant appealed to EAT.
The Appeal
The EAT’s judgment was handed down on 2 November 2023. The EAT disagreed with the ET’s reasoning and the claim was remitted back to the ET for further determination. Through their considerations, the EAT set out some key principles for an employer to consider when there is a heat of the moment resignation:
- Once a notice of resignation has been effectively given, it cannot be retracted without the consent of both parties.
- Consideration must be given as to whether a resignation would objectively appear to the reasonable employer, that the Claimant really had the intention to resign. An employer should examine whether the words used by the employee would reasonably appear to have been ‘really intended’ at the point in time that they were said.
- The wording of a resignation must be look at objectively in all the circumstances of the case. Circumstances of the case, include anything that would affect the language used by the employee.
- The reasonable employer must believe that a resignation is ‘seriously meant’, ‘really intended’ or ‘conscious and rational’.
- An intention to resign is not enough, the reasonable employer, must know from the words used that the employee is actually resigning.
- Evidence about what happened after the resignation is relevant. However, the more time that elapses, the more likely evidence will be of a later impermissible change of mind by the employee rather than of the intention of the employer at the time of the resignation.
Employers should take care not to ‘jump’ on heat of the moment resignations as they may not be deemed valid if challenged. It is recommended to seek legal advice before proceeding.
National Minimum Wage increase
At the State Opening of Parliament last month it was announced that National Minimum Wage for those over the age of 21 will increase by 9.8% to £11.44 on 1 April 2024. This comes following recommendations by the Low Pay Commission. National Minimum Wage for youth workers and apprentices will also increase as follows:
18 to 20-year-olds £8.60 (increase of £1.11)
16 to 17-year-olds £6.40 (increase of £1.12)
Apprentices £6.40 (increase of £1.12)
New Government Guidance for Employers on Fit Notes
The government has updated its Guidance on Fit Notes for Employers and Line Managers. The is a useful checklist for employers and a number of case studies.
The Equality Act 2010 (Amendment) Regulations 2023
The Government has published draft legislation to amend the Equality Act 2010 which contains EU-derived discrimination protections. The Equality Act 2010 (Amendment) Regulations 2023 will come into force from 1 January 2024.
The purpose of the Regulations
Due to Brexit, EU-based equality laws will cease to apply at the end of 2023. Therefore, the EU law protecting against discrimination would disappear at end of this year.
Under the Retained EU Law (Revocation and Reform) Act 2023, published on 28 July 2023, at the end of 2023 domestic law will have supremacy over any retained EU law.
Therefore, the Regulations have been introduced to carry across aspects of retained EU law into domestic law. This will ensure that current employment law protections are maintained despite Brexit.
The Amendments
The amendments being brought in under the Equality Act 2010 (Amendment) Regulations 2023 include:
- Right to make an indirect discrimination claim by association. This amendment extends the right to bring a claim to individuals who do not hold a protected characteristic but suffer the same disadvantage as those who do, because of an employer’s provision, criterion or practice (PCP).
- The definition of disability has been clarified, to include consideration of an individual’s ability to participate fully and effectively in working life on an equal basis with other workers when looking at ‘day-to-day activities’.
- Making discriminatory statements in relation to not wanting to recruit people with certain protected characteristics, is now covered under the protections of direct discrimination. This is the case even if there is not an active recruitment process ongoing and/or there is no identifiable victim.
- Discrimination on the grounds of breastfeeding, has been confirmed to falls under the protected characteristic of sex.
- A ‘single source’ test to establish an equal pay comparator has been introduced.
For further advice on recent Employment Law Changes please contact Tom Evans at tom.evans@dtmlegal.com
