Category: Employment Law

On the 26 October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, amending the Equality Act 2010 in two respects.  

1. Imposes a ‘mandatory duty’ upon you to take ‘reasonable steps’ to prevent sexual harassment of your employees in the course of their employment. This applies to sexual harassment as defined in the Equality Act 2010, which is unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. 

2. Providing employment tribunals the authority to uplift sexual harassment compensation by up to 25% where it is found you have breached this new duty.  Please note, this uplift could be substantial, particularly as compensation awarded in serious cases of sexual harassment can exceed £50,000.  In addition to this, complaints of sexual harassment can also lead to costly settlements, high-profile departures of senior management, loss of productivity and an adverse effect on recruitment and employee retention. 

What can you do?

Over time the courts have made it evidently clear that such reasonable steps will usually include:

• Having well-drafted equal opportunities and anti-harassment and bullying policies in place
• Ensuring all employees are aware and understand such policies and their implications
• Taking steps to deal efficiently and effectively with complaints, including taking appropriate disciplinary action where necessary, and
• Providing equality and harassment training to employees and supplementary training for those individuals with managerial/supervision responsibilities.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

A recent case heard by the Employment Tribunal highlights the importance of following a fair consultation process when looking at redundancies, regardless of the pool.

In the case of Valimulla v Al-Khair Foundation, the Claimant worked as a liaison officer covering the North-West of England. There were other employees who carried out a similar role in other geographic locations. Work for liaison officers decreased across the country during the Covid pandemic. The Respondent placed the Claimant at risk of redundancy in a pool of one, with the other liaison officers not placed at risk. Whilst three consultation meetings were held, there was no consultation about the appropriateness of the selection pool. The Claimant was dismissed and claimed unfair dismissal.

In the first instance, the Employment Tribunal accepted Al-Khair Foundation’s defence that Mr Valimulla was in a self-selecting pool of one and found that the selection process had not been flawed. The Claimant appealed.

The Employment Appeal Tribunal, allowing the appeal, held that consultation on redundancy had to take place at a time when it could make a difference. The Respondent had not consulted with the Claimant about the pool for selection. The tribunal had also failed to consider whether choosing a pool of one was a reasonable approach in this particular case. 

The EAT substituted a finding of unfair dismissal (on procedural grounds) because of the failure to consult about pooling. 

This case demonstrates the importance of employers genuinely applying their mind to the question of pooling and evidencing reasonableness in their approach. It also reiterates the need to consult with staff on a proposed redundancy pool and carefully consider the choice of pool, which includes looking at employees at different locations.

Relevant factors which may be considered when determining the pool of candidates for redundancy include the following:

• The extent to which employees are doing similar work (possibly even if they are performed at different locations). The employer should look at the reality of the situation as opposed to what the contract says in theory regarding the employees working role.
• The extent to which any employee roles are interchangeable.
• Whether the employer “genuinely applied” its mind to the composition of the pool.
• Whether the selection pool was agreed with the union or employee representatives, if appropriate.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

The Government recently announcement that the Employment (Allocation of Tips) Act 2023 will now come into force on 1^st October 2024, as opposed to the original proposed date of 1^st July 2024.

Under this Act, employers will be required to pass tips on to workers; employers of businesses where tips are left more than occasionally are required to have a tipping policy in place; and workers have a new right to request a copy of their tipping record, in order to enable them to bring a claim to the Employment Tribunal where they believe they are not receiving tips they should be.

Employers will also be required to consider the new statutory Code of Practice when distributing tips. The final draft version of this new statutory Code has now been published: https://www.gov.uk/government/consultations/distributing-tips-fairly-draft-statutory-code-of-practice.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

The law has always granted protection from redundancy to those on maternity, adoption, or shared parental leave. Individuals on these kinds of leave are entitled to right of first refusal for any suitable alternative roles in a redundancy situation.

From the 6 April 2024, this protection is being extended. The table below sets out the current position and how the law is changing.

	The current position	The change	When will this take effect?
Pregnancy	No protection	Protected from the date the employee informs the employer of her pregnancy for the full period of pregnancy	Where the employer is informed of the pregnancy on or after 6 April 2024
Maternity leave	Protected during the period of absence on maternity leave only	Protected for 18 months from the first day of the estimated week of childbirth. The 18-month period can be altered to start from the child’s actual date of birth where the employee informs the employer in writing of the actual date during their maternity leave period.	Where the maternity leave ends on or after 6 April 2024
Adoption leave	Protected during the period of absence on adoption leave only	Protected for the period of 18 months from the date of placement for adoption	Where the adoption leave ends on or after 6 April 2024
Shared parental leave	Protected during the period of absence on shared parental leave only	Protected for 18 months from birth/placement for adoption provided that the employee has taken a period of at least 6 continuous weeks of shared parental leave. This protection will not apply if the employee otherwise has protection under either the maternity or adoption provisions above. Protected during the period of absence on shared parental leave only (as now) if fewer than 6 consecutive weeks of leave are taken.	Where the period of 6 continuous weeks of shared parental leave starts on or after 6 April 2024

Where an employee suffers a miscarriage before their 24 weeks of pregnancy, they will have protection throughout their pregnancy and for a two-week period following the miscarriage. If they miscarry after 24 weeks of pregnancy, this is classed as a still birth. They will be entitled to maternity leave and will have the same protection as any other employee taking maternity leave.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

It is important you are made aware of the new rates of National Living Wage (NLW) and National Minimum Wage (NMW) which are due to come into force from 1 April 2024. These are outlined as follows:

• National Living Wage (21
  and over): £11.44 per hour
• 18-20 rate: £8.60 per
  hour
• 16-17 rate: £6.40 per
  hour
• Apprentice rate: £6.40
  per hour
• Accommodation offset:
  £9.99 per day

There is also a change to NMW exemptions so that, from 1 April 2024, employees who carry out domestic work while living with their employer will become entitled to the minimum wage.

Previously, live-in domestic workers were exempt if they were not members of the family but were ‘treated as such, in particular as regards … the provision of living accommodation and meals and the sharing of tasks and leisure actvities’. This exemption will now be removed.

Employers who do not pay staff at the appropriate rates not only risk claims from employees but may also be ‘named and shamed’ in a government report. Therefore, it is important for employers to keep abreast of the increases in pay rates, and in particular the application of the NLW to younger workers aged 21 and over from April.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Ask yourself, are you familiar with the process of handling flexible working requests?

A recent case heard by the Employment Tribunal highlights the importance of knowing how and when to manage a flexible working request made by an employee. In this case, a long-serving manager was constructively dismissed when her request for reduced hours after returning from a period of adoption leave was refused.

To establish some important facts, the Claimant and her partner adopted two sons in June 2022, and then had a period of adoption leave. Following the end of her leave, she submitted a flexible working request to look after her sons – one of whom the tribunal described had previously experienced “trauma” and “needed stability”.

During the period of leave, the Company was sold and following the acquisition, Miss Westerdale took over as HR manager, but she admitted to having no experience of dealing with employees returning to work after a period of family leave and had never dealt with a flexible working request. The Claimant sent an email to the Company outlining that she wanted to return to work on two days a week but would be able to increase her days the following year when her sons required less childcare. However, Miss Westerdale phoned her and told her that her request to work two days a week had been declined. Miss Westerdale denied this and claimed that in the phone call she said the matter was still under review. The tribunal did not accept this fact, as the Claimant had sent Miss Westerdale an email within half an hour of the call asking for the reasons why they had denied her request.

The Claimant’s solicitor wrote to the Respondent highlighting the failures in handling her flexible working request, outlining her legal claims and that she sought financial settlement in return for an agreed termination of her employment at the end of her adoption leave. Miss Westerdale did not reply to the letter, but instead wrote to the Claimant saying that no decision had been made yet, but if she was unhappy with the decision when received, she would be able to appeal the decision.

Miss Westerdale wrote to the Claimant saying they could not accommodate a two-day week and it needed her to return to work for four days a week. She also said in the letter that the Company could not afford the extra cost of recruiting another staff member to cover the handover from the Claimant at the end of her work period. The Claimant resigned, outlining in her resignation letter that the Company had failed in its obligations towards her in dealing with her flexible working request, and there were no valid reasons for the refusal.

The tribunal claimed that the firm’s HR manager had sought to “cover her tracks” after she realised that she had not followed proper procedures in denying the Claimant’s request. The Judge commented that Miss Westerdale failed to properly consult with the Claimant before reaching the decision, “and pretended that a decision had not been made when it had”, resulting in the Claimant being unfairly constructively dismissed. However, the tribunal concluded that it had not seen evidence to show that the Respondent acted as they did because the Claimant had taken adoption leave.

Rather, the tribunal found that it was effectively due to the HR manager’s lack of experience in dealing with flexible working requests, the failure to understand the need to obtain full information and discuss the request with the Claimant before reaching a decision, and the desire to cover their tracks when they realised, they should not have reached a decision when they did.

The tribunal therefore awarded a total of £15,048.18 in compensation to the Claimant for unfair dismissal.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Ask yourself the question, can liability for harassment transfer under TUPE, where the harasser transfers under TUPE and the Claimant was not employed at the point of the transfer?

If you have knowledge of TUPE, you will be aware that under these regulations, the transferee (the buyer) essentially steps into the transferor’s (seller’s) shoes with regards to transferring employees upon the transfer. Due to this, all the transferor’s rights, powers, duties, and liabilities under or in connection with the transferring employees’ contracts pass across to the transferee, as well as any acts or omissions of the transferor before the transfer, are treated as having been done by the transferee.

Given this, you may be thinking that the answer to the initial question is yes. However, this was not the case in Moore v Sean Pong Tyres, whereby it was held liability does not pass.

In this case, the Claimant claimed constructive dismissal and harassment against the Respondent. After the Claimant resigned, the alleged harasser had transferred from the Respondent to another company under TUPE. The Respondent wanted to add this company as an extra Respondent. The argument was a novel one – in harassment claims the employer is generally liable for the harassing acts of its employees. Here, the harassing employee had transferred to a new employer under TUPE.

The Respondent argued that liability for the harassing employee’s conduct should transfer to the transferee employer, even though the Claimant himself had not transferred. The tribunal refused the application in claiming that responsibility did not transfer and even if it did, the Respondent’s request was too late.

The Respondent appealed the tribunal’s decision. The EAT agreed with the tribunal and held that liability under the Equality Act 2010 does not transfer unless the claimant also transfers. Usually, when an employee does not transfer under TUPE, rights, and responsibilities towards them do not transfer either. The fact that the harasser had transferred did not alter this position.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

A question for you – was a tribunal entitled to decide that a decision to dismiss an employee for posting a racist ‘joke’ on their employer’s intranet fell outside the band of reasonable responses?

It was held by the Employment Appeal Tribunal (EAT) in the recent case of Vaultex v Bialas, that they were not.

In this case, the Claimant had posted a racist joke on the Respondent’s intranet. The Claimant had a long, unblemished employment record and had apologised for the way he acted. However, the Respondent decided to dismiss the Claimant for gross misconduct. Somewhat surprisingly, it was held by the tribunal that the Claimant had been unfairly dismissed. The tribunal concluded that, having considered the Claimant’s previous record and the fact he had apologised for his actions, any sanction higher than a final written warning was unfair, and therefore fell outside the band of reasonable responses that a reasonable employer could have reached.

However, on appeal by the Respondent, the EAT held that the tribunal had substituted its own view for that of the Respondent. The EAT concluded that ‘any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case’. The EAT therefore substituted a finding of fair dismissal.

This case provides a key insight into the band of reasonable responses test to be adopted by employers and how this applies in practice. For the avoidance of doubt, judicial guidance regarding the meaning and application of s.98(4) of the Employment Rights Act 1996 in the context of misconduct dismissals is set out below:

• In assessing the
  reasonableness of the decision to dismiss, the tribunal must consider the
  decision against the objective standards of the hypothetical reasonable
  employer, rather than by reference to the ET’s own subjective views. It
  must consider whether the employer has acted within a “band or range of
  reasonable responses” to the misconduct found of the employee.
• The tribunal must not
  substitute its own view as to whether they think that the dismissal was
  fair for that of the employer.

Ultimately, it is important that employers ensure that any disciplinary sanction is proportionate to the alleged misconduct and apply a lesser sanction, such as a written warning, where appropriate. If you find yourself in this situation, ask yourself: could a reasonable employer class the employee’s actions as gross misconduct and dismiss? If the answer to this question is yes, then there is a good chance that a dismissal will fall within the reasonable band of responses and, consequently, would be deemed fair. Of course, this will all depend on the individual circumstances of the case at hand.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Did an employment tribunal act unreasonably in denying an extension of time in a discrimination case whereby the Respondent had not informed the Claimant of the race of their comparator?

No, it was held in Jones v Secretary of State for Health and Social Care, a case which provides a key insight into the rules regarding discrimination and out-of-time claims.

In this case, the Claimant who was of African-Caribbean descent, applied for a promotion but was unsuccessful. The successful applicant accepted the role in April 2019; however, the Claimant did not find out till later in July 2019 that he was unsuccessful. This meant that the 3-month limitation period for bringing a claim to the Employment Tribunal had expired. The Claimant asked for details of the successful candidate, but this was not provided by the Respondent. This led the Claimant to issue a claim for race discrimination in October later that year.

The Employment Tribunal claimed that there was nothing in the evidence which could have led them to draw an inference of discrimination. They stated that there was no evidence of any conscious or sub-conscious consideration of racial characteristics, and that the Respondent genuinely chose the best candidate for the role based on their performance at interview. Despite the Claimant’s criticisms, the Respondent did provide him with information and an explanation of their actions quite early on. It was determined the Claimant was given enough information to understand the interview process should he wanted to present a claim to the Tribunal.

The tribunal held that the Claimant’s claim was out of time. The primary time limit ran from 2 April 2019, and it was not just and equitable in the circumstances to extend time. The EAT agreed with this conclusion, and it was held that the EAT can only overturn a tribunal’s decision that it was not just and equitable to extend time if it was ‘perverse’.

It was found that the tribunal had acted correctly in weighing the issues the Claimant had in discovering the race of the successful candidate and the prejudice to the Respondent caused by the delay. The EAT did, however, criticise the Respondent for not disclosing the race of the successful candidate until after the submission of its ET3. The EAT reflected that failure to provide such basic information might, in appropriate circumstances, lead to an inference of discrimination.

This case highlights the need for employers to share information on potential comparators to relevant employees where necessary. It also demonstrates the importance of adhering to strict time limits when presenting a claim to the tribunal. Most Employment Tribunal claims have a time limit of 3 months less one day to bring a claim however, for certain claims this time limit is extended to 6 months less one day.

Although the Employment Tribunal may grant an extension of time on just and equitable grounds in discrimination claims, the hurdle to be jumped, to establish it would be just and equitable to extend time, is a high one. Here, the reason for the Claimant’s delay in commencing his claim was not enough to get over that hurdle, leaving his claim out of time.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn