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Employment Law Update | July 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

Are businesses looking at making redundancies?  

As you will know, inflation and high interest rates remain in the daily news and many still predict a recession is on the cards.  In keeping with that background a recent survey has suggested that 30% of employers are likely to make redundancies in the next 12 months.  Of the participants 41% of large businesses and 20% of small and medium sized businesses stated they were likely to make redundancies.

Employees in England and Wales have certain rights regarding redundancy and whilst employers can make redundancies, it’s crucial that a redundancy is genuine and handled in a fair and legally compliant manner.

An employer’s reputation isn’t the only thing at stake if they get it wrong. It could also be financially costly as employees might bring employment tribunal claims for such things as unfair dismissal and/or discrimination. Employers should therefore take certain steps to ensure redundancies are carried out in a fair and legally compliant way including:

  • Planning and deciding which roles are affected, how many employees are at risk and identifying alternative options to avoid redundancies.
  • Consulting members of staff and in certain circumstances collectively consulting with employee representatives or recognised Trade Unions.
  • Considering whether it’s appropriate to offer voluntary redundancy.
  • Following a fair selection process to decide who should be made redundant. If the proposal is to reduce the number of employees doing the same or a similar role, appropriate selection criteria should be identified avoiding anything discriminatory.
  • Searching for suitable alternative employment to be offered to those at risk of redundancy.
  • Allowing employees whose redundancy has been confirmed flexibility and time off to find new work or attend interviews.

This isn’t a complete list and there are other things employers should also consider.

Each redundancy situation is different and bespoke advice early on can help employers avoid any pitfalls. We have years of experience in guiding employers through complex redundancy exercises including putting together appropriate criteria, marking systems, and providing letters to use when inviting employees to consultation meetings.

If you’re looking to make redundancies, please don’t hesitate to get touch with one of our Employment Law experts who will be happy to guide you through the process.

In the Law

Government announces plans for flexible paternity leave
In response to a consultation issued in 2019 as part of the government’s Good Work Plan, on 29th June 2023 plans to amend legislation were announced providing new parents with more flexibility on when and how paternity leave can be taken.

Currently, statutory paternity leave can be taken by employees in a one or two-week block during the first eight weeks after the birth, placement, or adoption of a child. However, under the proposed changes employed fathers and partners will be able to take statutory paternity leave in two separate blocks of one week, at any time in the first year after the birth, placement, or adoption of a child.

The proposed plans will also adjust the way in which fathers and partners need to provide notice of leave to their employer. While employees will still need to notify their employer of entitlement to take paternity leave 15 weeks prior to the expected week of childbirth, they will also need to give 28 days’ notice before each period of leave.

Secondary legislation will need to be introduced to amend the relevant legislation and it’s been indicated by the government that this would take place in due course. We’ll let you know when/if a timetable is provided for when these changes will take effect.

Changes to flexible working rights nearly up on us

The Employment Relations (Flexible Working) Bill has now received royal assent and will change the law in relation to flexible working rights. Changes to the current process include:

  • Employers will have to consult with the employee if they are considering rejecting a flexible working request (although what a consultation should look like isn’t specified and there won’t be a positive obligation to consider alternative arrangements if the employer does refuse a request).
  • Employees will be able to make two flexible working requests in a 12-month period instead of the current one;
  • Employers will need to respond to a request within two months instead of the current three months (unless an extension is agreed);
  • Workers will no longer have to specify how the employer might deal with the effects of their request. 

The eight permissible reasons for refusing a request will remain the same.

Although it was expected, the day-one right to make a flexible working request hasn’t been included within the Employment Relations (Flexible Working) Act and employees still need to have worked for the employer for at least 26 weeks before making a request to work flexibly. Having said that, there are plans to introduce a day-one right through secondary legislation next year.

In the Courts

Fresh guidance on alternative dispute resolution in Employment Tribunal claims
This month, Judge Barry Clarke, President of Employment Tribunals in England and Wales has issued Presidential Guidance on alternative dispute resolution (ADR) replacing previous guidance issued in 2018. It’s understood the latest guidance was influenced by changes we witnessed during the Covid-19 pandemic in relation to the use of remote mediation.

The guidance provides an explanation of the four types of ADR available: -

  • Acas conciliation
  • Judicial mediation
  • Judicial assessment
  • Dispute resolution appointments

Encouraging parties to resolve their cases by agreement, the guidance focuses on judicial mediation, judicial assessment and dispute resolution appointments.

While judicial mediation is described as consensual, confidential, and facilitative, as employment judges conducting the mediation will not give either party an indication of prospects of success and will only facilitate the mediation, judicial assessment is described as consensual, confidential and evaluative as the employment judge, whilst remaining impartial, will provide the parties an evaluation of their respective prospects of success and possible outcomes in terms of remedy.

In contrast, dispute resolution appointments are “non-consensual” although they remain confidential and evaluative, as the tribunal can arrange an appointment even if the parties are not interested, although it’s important to note that while arranging of the appointment is non-consensual, parties aren’t obliged to comply with the outcome.

The Employment Tribunals need to keep the guidance in mind, although they are not bound to follow it. The release of this guidance highlights how parties are being encouraged more and more to consider resolving their cases by agreement to avoid the need to progress to a final hearing.

Supermarket worker kneed in the bottom held to be victim of direct discrimination on the grounds of sex

In Goh v Asda Stores, Mr Goh worked as a checkout operator at the Willington branch of Asda. In January 2019 an incident occurred in which Mr Goh’s “backside” was kicked by a colleague, Ms Asante. Mr Goh didn’t report this incident as he thought it was a “one off” although he later alleged that Ms Asante had previously groped his private parts.

The following month during another incident, Ms Asante kneed Mr. Goh’s backside with sufficient force to cause him to jolt forward.  Mr Goh told the Tribunal he felt instant pain and had to seek medical advice from his GP. Mr Goh stated the incident made him feel angry and humiliated and he reported the matter to his line manager, followed by a written statement including details of someone who had witnessed the incident. The colleague named as a witness also provided a statement corroborating Mr Goh’s allegations.

The Tribunal found that the employer did nothing for several months and Mr Goh continued to work alongside Ms Asante. Mr Goh also told the Tribunal that in June 2019 he overheard colleagues discussing the incident which made him upset, prompting him to approach another store manager about the progress of his complaint who suggested the complaint should be resubmitted, following which a meeting was held with another store manager.

Eventually, in July 2019 Ms Asante was interviewed about the incident and she denied kneeing Mr Goh, stating that they always played jokes with each other, often involving striking, punching and exchange of derogatory comments. Following this, mediation between Mr Goh and Ms Asante was arranged but it wasn’t successful.

Asda eventually appointed a grievance manager who held a meeting with Mr Goh in February 2020 to discuss the grievance, following which several members of staff were interviewed and attempts were made to obtain CCTV footage of the incident. Though Mr Goh received an outcome to his grievance, he appealed and was asked to resubmit the same as his reasons weren’t clear. However, the Tribunal found the appeal letter was clearly articulated and failed to understand why Mr Goh was asked to resubmit it.

Mr Goh brought a claim for sex discrimination based on Asda’s failures to handle the allegations of assault against his female colleague. He claimed that had the allegations been made by a woman against a man, Asda would have responded in a very different, and more positive way.

The Tribunal found that Mr Goh suffered a detriment due to the improper handling of his appeal and that Asda directly discriminated against him on the grounds of sex by not taking his allegations of the two assaults seriously; delaying the investigation; failing to interview a witness; and mismanaging the grievance, ethics, and appeal process.

This case serves a clear reminder that employers need to treat complaints of sexual harassment and discrimination seriously, regardless of the gender of the person making the complaint. It’s also crucial to deal with such concerns promptly and ensure there is documentary evidence of actions taken to investigate the issue.

EAT decides bank worker's dismissal was fair
Following a finding of gross misconduct in relation to a data breach issue, Ms Charalambous was dismissed by her employer, National Bank of Greece and she brought a claim against her employer on various grounds, including unfair dismissal.

Ms Charalambous had been employed in the bank’s private banking department since May 2014.

While the dismissing manager, Mr Vathis, had been involved in the initial investigation of the allegations made against Ms Charalambous, he handed the investigation over to another manager. Following the investigation, the decision to dismiss Ms Charalambous was made by considering the investigation reports without Mr Vathis having a meeting with Ms Charalambous to discuss the matter at that stage, although he did later meet with her at the appeal stage.

As part of the claim, Ms Charalambous’ claimed the process prior to dismissal had been unfair because Mr Vathis did not meet with her before making the decision to dismiss.

The Tribunal found that Ms Charalambous’ dismissal was fair on the basis that overall, the employer had followed a procedure that was within the range of reasonable responses.

Ms Charalambous however appealed the Tribunal’s decision. The EAT rejected an argument that the previous case of Budgen & Co v Thomas has established a rule that the dismissal was on the face of it unfair if the dismissing manager did not hold a meeting with the employee before making a decision to dismiss.

The EAT held that it is desirable that before deciding to dismiss someone, a meeting takes place but the EAT found that a meeting between Ms Charalambous and the dismissing manager had occurred at the appeal stage offering Ms Charalambous an opportunity to explain her position sufficiently. While it was “less than ideal”, the appeal meeting provided an opportunity to cure any defect in the first stage of the process and therefore the dismissal was fair.

This case is a reminder that holding an appeal hearing can rectify earlier procedural failings, but we still recommend that a disciplinary hearing is held before a dismissal as an appeal hearing may not always have this result.

 


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