Welcome to the Spring 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.
LEGISLATIVE DEVELOPMENTS
NEW PATERNITY LEAVE REGULATIONS
New regulations have been published which amend the statutory paternity leave entitlements.
The changes are as follows:
- Employees will now be able to take their two-week paternity leave in non-consecutive periods of a week each (rather than in one block).
- Employees will now be able to take their paternity leave at any time within 52 weeks after the birth (rather than within 56 days after the birth).
- Employees will now only need to provide 4 weeks’ notice for taking their paternity leave (rather than 15 weeks).
The amendments will apply to parents of babies whose expected week of birth are after 6 April 2024 or who are expected to be placed for adoption on or after 6 April 2024.
Employers should ensure that their paternity leave policies are amended to reflect the above.
CASE LAW UPDATES
WHISTLEBLOWER PROTECTIONS CANNOT EXTEND TO EXTERNAL JOB APPLICANTS
The Employment Appeal Tribunal’s (EAT) decision in Sullivan v Isle of Wight Council, clarifies that protection against whistleblowing will not apply to external job applicants.
Facts
In the case of Sullivan v Isle of Wight Council, the claimant applied for two job roles and was unsuccessful. After the second rejection, the claimant filed a police report alleging verbal assault at her interview by one of the respondent’s employees.
The claimant complained to her local MP about her interview and make allegations of financial irregularities. The claimant also complained directly to the respondent about how her interview had need conducted. The respondent conducted an internal investigation in response. The respondent dismissed the complaints and rejected the claimant’s right to appeal.
The claimant then brought an employment tribunal (ET) claim for whistleblowing detriment against the respondent. The claimant claimed that she had suffered a detriment when her right to appeal had been denied, and that this was because she had made a protected disclosure regarding the financial irregularities.
Whistleblowing protection only apply to current or former employees. Therefore, the claimant argued she had a claim under Article 10 of the European Convention on Human Rights (right to freedom of expression) and also, as an “external candidate”, she was able to bring a claim for discrimination under Article 14 (right to be protected from discrimination) as she fell within the definition of “other group”.
The EAT concluded that external job applicants cannot bring a whistleblowing detriment claim against a prospective employer (save for NHS job applicants who are expressly protected in the interests of patient safety). The EAT commented that it would require a legislative amendment by parliament to extend whistleblowing protections to external job applicants.
EMPLOYMENT TRIBUNAL CONCLUDES THAT PREVENTING AN EMPLOYEE ON MATERNITY LEAVE FROM ACCESSING A GROUP WHATSAPP CONSTITUTED PREGNANCY AND MATERNITY DISCRIMINATION
The ET’s decision in Lad v Lily Head Dental Practice Sales Limited, demonstrates the importance of considering access to communication channels for those employees on maternity leave.
The Facts
The claimant was on maternity leave when she reported to the respondent that she had lost her work mobile. The claimant requested a replacement to allow her to continue accessing a group WhatsApp chat. The respondent refused her request, explaining that there was no reason for the claimant to have access to the WhatsApp chat whilst on maternity leave. This decision led to the claimant feeling isolated from her colleagues. The claimant brought a claim of maternity and pregnancy discrimination.
The ET found that the respondent’s decision not to provide the claimant with a replacement phone and therefore to exclude her from the WhatsApp chat with her colleagues can “reasonably and objectively” be viewed “as less favourable treatment for someone on maternity leave and detrimental treatment”.
The ET noted that employees on maternity leave are “likely to be away from the normal day-to-day interactions that they would have with colleagues”, this in turn is likely to make an employee “feel isolated from their employer and their colleagues.” The ET commented that “for some employees this isolation will be welcome but for many others it will not be”, demonstrating that an employee on maternity leave should have the choice whether they wish to continue communication with their colleagues during their maternity leave.
TUPE: Liability under the Equality Act 2010 does not automatically transfer to a new employer.
The EAT’s decision in Moore v Sean Pong Tyres, reinforced the principle that just because an employee is transferred to a new employer under TUPE does not automatically shift liability for past actions on to a new employer.
What is TUPE?
The Transfer of Undertakings Protection of Employment (TUPE) regulations protect the rights of employees during business transfers.
Under the TUPE regulation 4(2)(a) following a relevant transfer, all of the former employer’s “rights, powers, duties and liabilities under or in connection with [the transferring employees’ contracts] shall be transferred by virtue of this regulation to the [new employer]”.
The Facts
In the case of Moore v Sean Pong Tyres, the claimant, after his resignation, brought a claim against the respondent (his former employer) for discrimination and harassment perpetrated by a colleague. Following the claimant’s resignation, the perpetrator had transferred from the respondent to a new employer under TUPE.
The respondent sought to argue that as the perpetrator had been transferred to the new employer, even though the claimant himself had not transferred, the respondent’s liability for the harassing acts of its employees had also transferred to the new employer under TUPE.
The ET rejected the respondent’s argument and the respondent appealed to the EAT. The EAT agreed with the ET and held that, where a claimant brings a harassment claim against their former employer, and the perpetrator then transfers to a new employer under TUPE but the claimant does not, the claimant’s former employer remains liable.
When considering a TUPE transfer, it is important that employers consider the position of liability on potential claims.
NEW GUIDANCE
ACAS PUBLISHED UPDATED CODE OF PRACTICE ON FLEXIBLE WORKING
Acas has recently updated its Code of Practice on Flexible Working. The Code has been updated to reflect the changes made to Flexible Working laws with effect from 6 April 2024.
The draft Code is awaiting parliamentary approval. If approved, the Code is likely to come into effect in April 2024.
CONSULTATION
POTENTIAL REINTRODUCTION OF FEES IN EMPLOYMENT TRIBUNAL AND EMPLOYMENT APPEAL TRIBUNAL
The government has launched a consultation on re-introducing fees in ET and the EAT.
Under the previous regime, introduced in 2013, claimants had to pay an issue fee and hearing fee when bringing a claim in the ET and the EAT. The fee amount varied depending on whether the claim was a Type A or Type B claim. In addition, different fees were payable for multiple claims. If a claimant’s claim was successful, the ET/EAT could order the respondent to reimburse them. A fee remission scheme was in place to exempt those unable to pay the fees.
The regime was challenged by Unison and in 2017, the Supreme Court ruled that the regime was unlawful.
The new proposed regime will require prospective claimants to pay a flat fee of £55 to bring a claim in the ET or when lodging an appeal in the EAT. There will be no further fees payable. The fee will be £55 for a single claimant or a multi-party action. Similarly to the previous regime, a system for remission from fees will be available for those who cannot afford the fees. In addition, for some very limited claims, fees will be exempted (claims against the national redundancy fund and claims for failure to collectively consult in large scale redundancies).
The re-introduction of fees may be beneficial to employers as the number of claims being brought is likely to reduce. The introduction of the previous regime saw a significant reduction in claims brought. In the year after the previous fees’ regime was scrapped cases rose by 39%. Therefore, a reintroduction of fees could reduce the number of spurious claims being brought. The backlog of cases would also be assisted by a reduction in claims being brought.
The consultation will close on 25 March 2024.
For further advice on recent Employment Law Changes please contact the employment team at employment@dtmlegal.com
NORTH WEST HR GROUP EVENT – TUESDAY 16TH APRIL
Calling all HR professionals! Join us for an exclusive event tailored to HR professionals. The DTM Legal team are joined by Gary Adlen, Founder and Director of Carbon Happy World to discuss the Employment implications of ESG.
This session will delve into the latest legal developments and strategic insights surrounding Environmental, Social, and Governance (ESG) factors within the employment landscape. Gary will discuss the environmental issues and opportunities for employers. Tom will focus on the social and governance employment law issues and opportunities as well as providing a general employment law update.
Time: 9:00am – 10:30am
Date: Tuesday 16th April 2024
Venue: Moneypenny, Western Gateway, Wrexham, Wales LL13 7ZB
For enquiries, contact us at marketing@dtmlegal.com or call 01244 354 800.
