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Employment Law Update | March 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

Annual increases to Tribunal Limits

The Employment Rights (Increase of Limits) Order 2023 has now been published, confirming the regular annual increases to tribunal limits, effective from 6th April 2023. The key increases are: -

  • The maximum Compensatory Award following an unfair dismissal claim will increase from the lower of 52 weeks’ pay and £93,878 to the lower of 52 weeks’ pay and £105,707.
  • For the purpose of calculating the basic award for unfair dismissal or a statutory redundancy payment, the cap on a ‘week’s pay’ will increase from £571 to £643.

Those amongst you keeping a close eye on the limits will notice that the increases this year are significantly more than previous years, which in some way addresses the fact that over recent years the increases have not kept up with inflation.

These increases are important if an employer is looking to make redundancies in the near future or if an employer is ordered to pay compensation to someone dismissed on or after 6th April 2023.

Contact us if you want any further information or if you need assistance with making redundancies or in dealing with an unfair dismissal claim made against you.

Annual update to amounts to be awarded for injury to feelings in discrimination claims

Each year the Vento bands (which are used by the Employment Tribunals when deciding injury to feelings awards following a successful claim for discrimination or whistleblowing) are updated by the Presidents of the Employment Tribunals.

As a result of this year’s update, for claims presented on or after 6th April 2023, the “Vento bands” will be:

  • £1,100 to £11,200 for less serious cases (lower band);
  • £11,200 to £33,700 for cases that do not merit an award in the upper band (middle band); and
  • £33,700 to £56,200 for the most serious cases (upper band), with the most exceptional cases capable of exceeding £56,200.

Government announces support to help individuals return to work 

As part of the Spring 2023 Budget, the Government announced plans for a “returnership programme” aimed at helping older people return to work or change careers. The Government has announced additional funding of £63.2 million to increase the availability of Skills Bootcamps and sector-based work academy programmes.

Furthermore, a Lifelong Learning Entitlement has been announced and if things go as planned, from 2025 people should be able to access loans worth up to £37,000 to upskill or retrain no matter where they are in life.

Since the announcement, the Government has published guidance for employers on helping individuals return to work. Amongst other things, the guidance addresses:

  • Why returners should be supported, emphasising the benefits of implementing a returners programme such as being able to access a high-calibre talent pool of experienced and mature people, creating a more inclusive workplace with gender, age and cognitive diversity and improving brand recognition and reputation.
  • Who returners may be, indicating that a returner can be a person of any gender returning from any type of career break but specifically encouraging adults over the age of 50 to get back into work.
  • Adapting recruitment practices, for example by enhancing and promoting flexible working polices, avoiding unnecessary requirements which may discourage returners from applying and marking vacancies as being suitable for returners in adverts.

In the Law

Can ChatGPT write our HR Policies

Whilst it seems possible that ChatGPT can be asked to produce HR policies such as an Equality, Diversity and Inclusion policy, the use of any AI tool and specifically ChatGPT for this purpose should be considered with caution.

It may be possible to use ChatGPT as a starting point, but it would not be wise to place sole reliance on any response provided and expert guidance should always be sought. Having said that, it then begs the question as to whether ChatGPT really provides any assistance over and above what a template policy from ACAS or fellow practitioners can offer.

The practical implications of substituting proper legal advice with ChatGPT continue to emerge, however as things stand a summary of implications could be: -

  • Whether the information is up to date. Law and in particular Employment Law has become a minefield and some areas are constantly changing. Whilst at some point in the future it may be possible for the information feeding into ChatGPT to be relatively up to date, as things stand this is not the case. The information ChatGPT currently relies on is only correct up until 2021 and therefore any changes to the law since 2021 would not currently be factored into any response ChatGPT can provide.
  • Whether the advice or policy considers nuances and complexities. Even though ChatGPT appears to provide seemingly confident responses to legal queries, it cannot be seen as any more reliable than a simple Google search. Any response that ChatGPT can provide is only as good and correct as the information that feeds into it and it cannot account for each nuance or complexity. No two organisations are the same and therefore it would be dangerous to rely solely on ChatGPT responses, as these can be incorrect and fail to consider certain exceptions.

In fact, it’s reported that ChatGPT itself said the following when asked if it can practice law, “No, ChatGPT is a large language model trained by OpenAI and is not capable of practicing law. ChatGPT is a computer program that uses machine learning algorithms to generate responses based on the input it receives. It does not have the knowledge or ability to provide legal advice or represent individuals in legal matters. Only a human lawyer who has completed the necessary education, training, and licensing requirements is qualified to practice law.”

Why not speak to people who can practice law? Contact us if you want any further information or if you need assistance with reviewing or putting in place any HR or workplace policies.

Government supports extension of safeguards to protect employees from harassment 

Although harassment in the workplace is already prohibited under the Equality Act 2010, amongst other proposed changes, the Government is supporting the extension of the safeguards available to protect employees.

The Worker Protection (Amendment of Equality Act 2010) Bill 2022-23, a Private Members’ Bill, is currently proceeding through Parliament and if the proposals become law, employers will become liable for third-party harassment (such as harassment by customers or clients) and will be under a duty take all reasonable steps to prevent sexual harassment of their employees.

The risk of an employer being found to have breached their duty to take all reasonable steps to prevent sexual harassment of their employees could be considerable as there are proposals for the introduction of an uplift to the compensation in respect of an employer’s failings, following a successful sexual harassment claim.

Whilst these changes have not yet come into force, if this Bill becomes law, employers will need to ensure they have the correct processes in place, which could involve staff training and robust policies and procedures to minimise the risk of sexual harassment.

Contact us if you want any guidance to prepare for the proposed changes or if you want assistance with putting in place any specific policies, procedures, or training materials.

More family friendly rights on the horizon for employees

The Neonatal Care (Leave and Pay) Bill 2022-23 is currently progressing through Parliament which aims to provide support to employees, by way of additional leave and pay, when they are responsible for children receiving neonatal care after birth.

If this becomes law, subject to meeting qualifying criteria, both parents will be entitled to take 12 weeks leave and pay to allow them to spend time with their premature or sick baby without having to use existing leave entitlements such as annual leave or having to return to work whilst their baby may still be very poorly or in hospital.

Whilst the introduction of neonatal leave and pay may be of less significance for those taking maternity leave, it will be a welcome introduction for others who would ordinarily only have the right to take two weeks’ time off work as paternity leave.

If the Bill is approved by the House of Lords and receives Royal Assent, its likely to take a while until additional leave and pay entitlements are introduced, as payroll providers and HMRC usually require several months’ notice to introduce changes to allow employers to administer new statutory payments. It is also likely that under the new legislation, employers will have the ability to reclaim the cost of statutory neonatal pay back, limiting the financial burden on employers.

Leave for unpaid carers

Whilst this has not yet become a legal entitlement, if the Carer’s Leave Bill becomes law, employees will have a new and flexible statutory right from the first day of their employment to at least one week’s unpaid carer’s leave per year if they are providing or arranging care for a dependant with a long-term care need.

Under the current proposals, employees will have the flexibility to use unpaid leave to suit their caring responsibilities and there will no requirement to provide an employer with evidence of how, or for who, the leave is to be used for.

Carer’s leave entitlement will form part of the family-related leave entitlements and therefore employees exercising the right to take unpaid carer’s leave will have the same employment protections as employees taking other forms of family-related leave, so they will be protected from detriment or dismissal as a result of having taken time off.

The government has committed to the introduction of unpaid carer’s leave; however, this has not yet become law and the Bill is currently making its way through the House of Lords.

In the Courts

Case Update: Mrs E Greenway-Evans v Countryside Properties (UK) Ltd

Mrs Greenway-Evans was accused of telling co-workers that a female employee was “shagging about” when she booked a holiday on Valentine’s Day. Further accusations included that she had made comments such as “I bet you stink” and that she had asked the female employee when she lost her virginity in front of the team before suggesting that she must have been “young” and “a slag”.

Mrs Greenway-Evans was also accused of inappropriately asking about the purpose of a medical appointment and making inappropriate comments following the female employee’s return to work.

The employer investigated the allegations and eventually in June 2020, dismissed Mrs Greenway-Evans for gross misconduct.

Mrs Greenway-Evans brought claims for unfair and wrongful dismissal.

The Employment Tribunal (ET) held that Mrs Greenway-Evans’ dismissal was unfair and wrongful because the employer’s investigation was “inadequate and not capable of reaching a reasonable conclusion that the claimant was guilty of gross misconduct”. The ET further concluded that “at all stages, the unquestionable seriousness of the allegations was itself treated as evidence, “the claimant’s explanations were baselessly treated as admissions” and that hearsay information and contradictory witness evidence was unreasonably treated as direct corroboration of the allegations. The ET also found that there was a culture of workplace “banter”.

Whilst this judgement doesn’t set a precedent, it does serve as a helpful reminder for employers about the importance of conducting a careful and in-depth investigation of facts and evidence to substantiate allegations before arriving at a reasonable belief in misconduct.

The Employment Team at LCF Law advises on all aspects of the full range of employment law issues for businesses. Whether that is dealing with everyday disciplinary and grievance procedures or defending employment tribunal claims we will be more than happy to discuss your needs with you.

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