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Employment Law Update | February 2023

Welcome to the latest edition of our employment law update.

As always please don’t hesitate to contact James Austin  if you have any questions arising from the news items below.

In the News

How can employer's deal with employees affected by the teacher's strike?

Following the National Education Union’s announcement, teachers in England & Wales will hold strikes throughout February and March 2023.

In recent years, employers have been forced to consider flexible working arrangements constantly, given the Covid-19 lockdowns, recent bad weather and travel disruptions. Further strikes and potential school closures once again raise the likelihood of disruption in the coming weeks.

There are several ways in which an employer can consider being flexible with its workforce where employees may experience childcare issues.

  1. Temporary flexibility with working patterns. If employees have young children at home, it may be possible to agree temporary reduction of hours or different working hours to enable them to drop off and collect children from alternative care providers.
  2. Work from home, although this may not be the most practical option particularly if an employee is unlikely to be able to work if they have young children at home as a result of school closures.
  3. Paid annual leave, however if business requirements do not permit employees to take annual leave, employers may reject such requests and/or require employees to provide appropriate notice for annual leave requests.
  4. Time off for dependants, which is often unpaid unless an employer has a more favourable internal policy. This type of leave is for employees to deal with emergency situations, for example to put other care arrangements in place and is usually not a long-term resolution.
  5. Statutory Parental Leave. Employees are entitled to take up to four weeks a year statutory parental leave for each child, under the age of 18. The employee needs to have been employed by the business for a minimum of 12 months. However, this would be unpaid leave and it may not be the most appropriate way of taking time off for odd strike days due to the way in which the statutory scheme operates.
  6. Unpaid Leave. Whilst this is often a last resort option, if there are no other suitable options and business requirements permit, agreement can be reached for an employee to have unpaid time off work.

Regardless of the approach an employer takes to exercise flexibility, it’s important to ensure that employees are not subjected to detrimental treatment for asserting a statutory right, such as taking time off for dependants or parental leave. Equally, if an employee was to be disciplined or dismissed because they requested or took time off work due to childcare, there could be a risk of a claim for detrimental treatment, unfair dismissal or even discrimination. Its therefore important to handle all matters sensitively and in a fair and consistent manner.

What's next for holiday pay

Employers in many industries rely on part-year or seasonal workers to help with periods of peak business demands. Last year’s Supreme Court judgment in Harper Trust v Brazel left many such employers concerned with that fact that part-year workers would need to receive 5.6 weeks of statutory holiday pay. Essentially, what this means is that part-year workers are entitled to holiday pay as though they are working through the whole year, even where they are only working part of a year.

However, the Government has now opened a new consultation on the way holiday pay and entitlement is calculated for temporary, part-year and zero-hour workers. The consultation will close on 9th March 2023 and the Department for Business, Energy and Industrial Strategy has stated the intention of the consultation is to ensure that holiday entitlement and pay is directly proportionate to the time spent working.

A 52-week holiday entitlement reference period is proposed which would mean that calculations are in line with entitlements received by part-time workers working the same number of hours over the year as a part-year worker.

Do we need a Menopause Policy?

Despite the Government rejecting some of the proposed changes to legislation to enhance protections for women experiencing menopause, this does not come as a relief to many employers. With an ageing population, women who are experiencing menopause are the fastest growing demographic.

Whilst experiencing menopause is not a protected characteristic on its own, claims under the Equality Act 2010 have to date been brought under the protected characteristics of sex, age, and disability. There is, therefore, a growing requirement for employers to have in place a Menopause Policy to provide support and clear information to women who may suffer from symptoms potentially impacting them in the workplace.

Contact us if you want any guidance or if you want assistance with putting in place a Menopause Policy at work.

In the Law

Proposed changes to flexible working

The Employment Relations (Flexible Working) Bill is currently working its way through Parliament and the Government has committed to several changes to the rights to request flexible working, such as: -

  • Giving employees the right to request flexible working from day 1 of their employment, as opposed to the current 26-week qualifying period requirement.
  • Employees being able to make two flexible working requests in any 12-month period.
  • Removal of the requirement for employees to set out the effects of their request on the employer.
  • A requirement for employers to consult with employees to explore available options before rejecting a request for flexible working.
  • A shorter timescale of two months for employers to respond to requests, as opposed to the current three-month timescale.

It’s important to note that whilst some people have been reporting this change as already in place, it hasn’t yet become law and the rights to request flexible working remain unchanged at present.

Government supports greater protection from redundancy for pregnant women and new parents

As things stands, when an employee is on maternity leave, adoption leave or shared parental leave they have enhanced rights under which employers have an obligation to offer them a suitable alternative role in preference to other employees, before offering redundancy. Currently, this protection lasts for the duration of the leave but comes to an end when the employee returns to work.

However, the Protection from Redundancy (Pregnancy and Family Leave) Bill, which was first introduced by Dan Jarvis MP and is now supported by the Government, seeks to extend this protection beyond a protected period of pregnancy.

If this becomes law, it will mean that those returning from maternity, adoption or shared parental leave will have an additional period after they return to work where they will have enhanced rights to be offered a suitable alternative role in preference to other employees.

Contact us if you want any further guidance or if you need assistance with putting in place any Family Friendly Policies.

In the Courts

Case Update: McAllister v Revenue and Customers Commissioners [2022] EAT 87 (8 December 2021)

The Employment Appeals Tribunal (EAT) upheld the Employment Tribunal’s (ET) decision that dismissing Mr. McAllister, a disabled civil servant, for long-term sickness absence did not amount to discrimination arising from disability under Section 15 of the Equality Act 2010 on the basis that it was a proportionate means of achieving a legitimate aim. The treatment was objectively justified by HMRC’s aims to maintain a fair, effective and transparent sickness management regime, and efficient use of resources.

The EAT also held that the ET had made a permissible finding that a 50% reduction to a payment under the Civil Service Compensation Scheme (CSCS) was disproportionate but a payment of 80% would have been objectively justified.

However, the EAT held that the ET erred in concluding that the decision to reduce Mr. McAllister’s CSCS payment for reasons partly related to his disability was discrimination contrary to Section 15 as the relevant treatment for the purposes of the claim (i.e., the entitlement to payment under the scheme) was not unfavourable to Mr. McAllister.

Mr. McAllister worked as an administrative officer for HMRC until his dismissal in December 2018 due to long-term sickness absence (245 days over 23 different occasions) as HMRC considered that Mr. McAllister’s absences were impacting productivity and staff morale and that all reasonable adjustments had been exhausted.

As Mr. McAllister’s dismissal was for reasons of capability, under CSCS he was entitled to a compensation payment for civil servants who are dismissed for inefficiency in certain circumstances. Initially the amount paid out to him was reduced by 50% because of his conduct in failing to answer calls, delays in returning relevant forms, disruptive behaviour, and lateness during a phased return to work, however he successfully appealed against the reduction and an independent body had increased the award from 50% to 80%.

This case highlights that it is possible to dismiss someone with a disability in a fair and non-discriminatory manner, particularly where the employer can satisfy an Employment Tribunal that its decision to dismiss was a proportionate means of achieving a legitimate aim, for reasons such as productivity and staff morale.

Contact us if you want any further information or if you need assistance in dealing with capability or absences issues within your organisation.

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