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Welcome to our Spring edition of CL Q.E.B

There is so much new legislation either in force, or coming into force over the next few months, that HR officers will have their work cut out to ensure nothing is missed. We’ve included a handy timeline below, but this could easily change if the government decides to make the most of the remainder of this Parliament to introduce more changes in an effort to steal Labour’s thunder (see their Employment Rights Green Paper). As ever, our team is on hand to help you navigate what is becoming an increasingly thorny maze of regulation so do please get in touch.

 

Legislative round-up


A number of new regulations come into force from 6 April 2024, which we covered in our January bulletin. However, given their importance, here they are again:

 

a.   Paternity Leave: the Paternity Leave (Amendment) Regulations 2024 allow employees to take their two-week paternity leave in two blocks of a week each (currently, fathers have to take either two consecutive weeks or one week only). Leave can also be taken at any point within the 52 weeks following the baby’s birth and fathers only have to give 28 days’ notice rather than the current 15 weeks before the baby’s due date. These regulations will apply to fathers whose baby’s EWC (expected week of childbirth) is on or after 6 April 2024.

 

b.  Flexible Working: The Flexible Working (Amendment) Regulations 2023 allow employees to request flexible working from day one of their employment (removing the 26-week minimum service requirement currently in force).

 

It is anticipated that the wider provisions of the Employee Relations (Flexible Working) Act (beyond the day-one right to request flexible working) will come into force this summer. This will give employees the right to submit up to two flexible working requests per year and without the requirement to explain the effect of their request on the business. It also requires employers to consult with the employee before refusing a request and to respond to a request within two months.

 

c. Extended protection from redundancy: The Maternity Leave, Adoption Leave and Shared Parental (Amendment) Regulations 2024 will protect pregnant employees from redundancy from the time they announce their pregnancy to up to six months after they return from maternity leave. Parents taking adoption or shared parental leave will also be protected for a similar period. Protection is also to be extended to employees who have suffered a miscarriage.

 

d. Carer’s leave: Under the Carer’s Leave Regulations 2024 employees are entitled to a day-one right to take a week’s unpaid leave within a 12-month period if they are responsible for caring for dependants with long-term care needs. The leave can be taken as block or as individual 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.

 

e. Fair Distribution of Tips: Coming into force on 1 July 2024, the Employment (Allocation of Tips) Act 2023 is designed to ensure that all tips are fairly distributed to staff whose good service customers have recognised through the practice of tipping. Amending the Employment Rights Act 1996, it will require employers to have a policy on tipping and to keep a record of tips. The government intends to issue a Code of Practice to help employers comply.

 

Timeline of legislation both in force and in the pipeline

 

Date due

Legislation

6 April 2024

Paternity leave amendment


Flexible Working - Day-one right to request


Pregnancy and Maternity - Extended protection from redundancy


Carer’s Leave

1 July 2024

Changes to TUPE transfer process for small businesses


Fair distribution of tips

Summer 2024

Introduction of wider provisions of Flexible Working regulations


Code of Practice for Fire and Re-hire

October 2024

Protection of employees against sexual harassment

April 2025

Neonatal care leave for parents

 

Statutory increases from 6th April 2024:

 

National Minimum Wage Increase

Increases to the minimum wage and national living wage took effect from 1 April 2024:

1.       Age 21 and over - £11.44 (up from £10.42)

2.       18 – 20 - £8.60 (up from £7.49)

3.       16 – 17 and apprentices - £6.40 (up from £5.28)

 

Statutory payments

Sick pay: Increased to £116.75 per week.

Maternity, Paternity, Shared Parental, and Adoption pay: the lesser of either £184.03 or 90% of average weekly earnings. The qualifying minimum weekly earnings for family-related payments remains unchanged at £123 a week.

Redundancy pay: Maximum statutory pay for a week is £700 and the maximum redundancy payment is £21,000.

 

Unfair dismissal

Basic award: Maximum amount for unfair dismissal is £21,000.

Maximum compensation: Maximum# compensatory award for unfair dismissal is £115,115*

 

# The maximum compensatory award applies to most unfair dismissal claims unless the dismissal qualifies as automatically unfair (such as for health and safety reasons or whistleblowing) in which case there is no maximum.

* The maximum compensatory award has increased but, as stated above, is also limited to a payment of 52 weeks’ pay if that is lower than the maximum.


Vento Bands increase

The levels of financial compensation for ‘injury to feelings’ awards in cases of discrimination increased as follows:

 

Lower band: £1,200 to £11,700 (less serious cases)

Middle band: 11,700 to £35,200 (those that do not merit a higher award)

Upper band: £35,200 to £58,700 (the most serious cases)

 

For exceptionally serious cases where there is no limit on injury to feelings awards, the upper band could exceed £58,700. These types of awards are very rare.

 

In other news…

 

Remote monitoring of employees

In October 2023, the ICO updated its guidance for employers on the lawful use of monitoring following recent research that revealed, somewhat unsurprisingly, that employees were not comfortable with the prospect that their employers may be monitoring them. The key points from the new guidance include the requirement to identify a ‘lawful basis’ under GDPR which, the guidance advises, is more often than not likely to be ‘legitimate interests’. To establish this correctly, a legitimate interests’ assessment should be carried out. Employees have a right to object to monitoring on this basis but this can be overcome if an employer can prove their case.

 

Labour’s ‘New Deal for Working People’

In their introduction to their Employment Rights Green Paper, published in February, the Labour Party commits to ‘strengthen workers’ rights’ and create ‘more and better’ jobs. Although it is unlikely that all their pledges will see the light of day if they form the next government, it is worth reviewing some of their key pledges:

a. Increasing pay: Including raising the National Living Wage; a ban on unpaid internships; an increase in Statutory Sick Pay; strengthening of collective bargaining rights; and the introduction of fair pay agreements.

b. Increasing work security: including the creation of a single status of ‘worker’ for all other than the genuinely self-employed; ending of qualifying periods for basic rights; banning of zero hours contracts; strengthening existing rights and introducing new ones (such as the right to switch off); extending family-friendly rights; updating Trade Union legislation; and increasing resources for the HSE.

c. Tackling discrimination: including the introduction of a Race Equality Bill to extend equal pay rights to ethnic and disabled workers; dealing with workplace harassment; and strengthening the rights of those with caring responsibilities.

Action: The government has already enacted, or is in the process of enacting, some of the elements contained in the Green Paper. If Labour wins the next election, the responsibility of governing is likely to lead to a watering down of some of these proposals, not least when their impact on small businesses is properly considered. For now, employers need to ensure that they keep up to speed with current legislation and amend their policies accordingly.

 

Flexible working: Acas Code of Practice

To help employers comply with the April 6 changes to flexible working (day-one right to request), and those expected to be introduced in the summer, Acas has updated its Code of Practice to reflect those changes. Addressing the different working arrangements that can be negotiated between employers and employers, the Code reviews various options including hybrid, part-time, home-based, flexitime, job sharing, compressed hours, annualised hours, term-time working and team-based rostering.

 

Reintroduction of Tribunal fees?

Between January and March 2024, the government conducted a consultation into whether or not fees should be reintroduced. Tribunal fees were originally introduced in 2013, following which there was a significant fall in the number of ET claims. In 2017, the Supreme Court ruled that, following its decision in R (Unison) v Lord Chancellor, fees were unlawful and discriminatory. The consultation sought views on the introduction of a one-off £55 fee per claim, with an exemption for those who are genuinely unable to afford any payment. Constantine Law partner, Alan Lewis, commented in People Management that the effect of reintroducing fees could deter lower-value claims and help clear the backlog of existing cases while not deterring those with higher-value claims.

 

Penalties for illegal working

Employers should be aware that the civil penalties for illegal working have tripled since the new charges were introduced on 13 February 2024. As most of our readers will know, employers have a legal duty to prevent illegal working via ‘right to work’ checks. How and when these checks are carried out have changed over time but the responsibility has remained firmly with the employer, a fact that is being reinforced by increased penalties:

a.       A first offence attracts a civil penalty of £45,000 (up from £15,000)

b.       Repeat offences within a three-year period attracts a penalty of £60,000 (up from £20,000)

The Home Office is introducing a Code of Practice on Preventing Illegal Working.

 

Cases:

 

Unfair dismissal and whistleblowing detriment

The Claimant was dismissed from his position as head of sales at Wicked Vision because of redundancy. However, he claimed that he was dismissed because he had made protected disclosures about his employer breaching the conditions of the Coronavirus Job Retention Scheme by requiring employees to continue working while on furlough. In addition to citing Wicked Vision as the Respondent, he also applied to add the company’s owner, David Strang, as co-respondent, arguing that he was a co-worker and thus could be held liable for vicarious liability for his dismissal. The ET agreed, but Mr Strang successfully appealed that the relevant legislation had been incorrectly applied. The EAT found that there was no ‘factual distinction’ between Mr Strang and the company as he was the owner of the business. Mr Rice’s amended application was dismissed.

 

Discrimination on the basis of belief

An actor was dismissed from playing the lead in a production of The Color Purple, based on the book by Alice Walker about the romantic friendship between two women, after it transpired that a comment she had posted on social media some years ago, expressing her view that homosexuality was a sin, had been retweeted. After she was dismissed, she brought a claim for religious or belief discrimination (she was a practising Christian), harassment and breach of contract although, as she admitted after she submitted her claims, she would not have accepted the role had she known (before reading the script) that the play involved a lesbian relationship.

 

The ET dismissed her claims and awarded costs against her. She appealed. The EAT upheld the ET’s decision, agreeing that the adverse publicity generated by the retweet of her social media comment was detrimental to the commercial success of the play; the Respondent’s conduct, given the seriousness of the situation, did not amount to harassment; and that there was, in the circumstances, no breach of contract.

 

Delay in resigning not affirmation of employment

Dr Leaney was an engineering lecturer with 40 years’ service. He also had a pastoral role and was responsible for one of the student halls of residence. Following a complaint from a student, which Dr Leaney consistently maintained was wholly unjustified and which the university repeatedly declined to investigate further, he resigned. However, there was a three-month gap between the final conversation with his faculty Dean, which triggered his decision to resign - ‘the final straw’ event - and his actual resignation, following which he claimed constructive unfair dismissal. The ET upheld the university’s position and dismissed his claim, citing the three-month delay as an affirmation of his employment.

 

The EAT disagreed, ruling that the three-month delay was the wrong focus and that the facts and circumstances of the case should be considered. In Dr Leaney’s case, his long service meant that he was likely to take his time to decide on the right course of action; the summer period was relatively quiet in terms of his responsibilities towards his students; and the delay also provided time to consider further negotiations.

 

Cannot transfer liability for harassment

 Mr Moore, employed by Sean Pong Tyres, resigned in April 2021 following which he filed a claim for constructive dismissal, harassment and discrimination under the Equality Act 2010 against his employer, rather than the employee responsible for the harassment. Shortly after Mr Moore filed his claim, the employee in question transferred to another company, Credential, which Sean Pong maintained was a TUPE transfer. Sean Pong accordingly sought to amend the application claiming that liability for the harassment now lay with Credential. The ET refused the application on the basis that liability did not transfer; Sean Pong appealed and the EAT upheld the ET decision.

 

It is not often that employment cases relating to TUPE transfers arise so this case provides a useful guide to an employer’s liability, should such a claim be brought during a TUPE transfer process.

 

Dismissal for racist joke is fair

Mr Bialas posted a racist joke on his employer’s intranet, following which he was dismissed for gross misconduct. He brought a claim for unfair dismissal. The tribunal found that, following the incident, Mr Bialas, who had a long and blemish-free service with the company, had “at every opportunity during the investigation and disciplinary process produced detailed and profuse apologies, orally and in writing. He asked for retraining.” The ET upheld his claim of unfair dismissal, finding that it was outside the band of reasonable responses and that an appropriate sanction would have been a written warning. Vaultex appealed. The EAT upheld the appeal, ruling that dismissal was within the band of reasonable responses open to the respondent, and so it was not unfair.

 

Tribunal should have made adjustments for disabled litigant

Mr Bella, a disabled litigant in person, had applied to the tribunal to record a three-day preliminary hearing to help him process the information more easily at the end of each day, rather than taking notes which, given his disabilities, he would struggle to do while following proceedings. To support his request, he provided evidence of his cognitive difficulties from his therapist. The tribunal refused.

 

Mr Bella appealed. The EAT ruled that the tribunal’s refusal was unlawful and that, under the Equality Act 2010, it had a duty to make reasonable adjustments for disabled litigants. It noted that the decision did not consider whether a recording would have removed Mr Bella’s disadvantage, there was no reason to believe a recording would be disruptive, the Respondents did not object, and there was nothing to suggest any such recording would be used unlawfully.

 


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