Many thanks to our contributors at this months HR Focus:
Sarah Lee, Employment Partner BPE Solicitors:
- sarah.lee@bpe.co.uk
Daniel Jenkins, Head of Client Service, Wagada Digital
Joanne Smith DWP Gloucestershire Employer Services Manager
Watch the recording of the session:
Download Daniels slides: Wagada Digital Employer Branding – C2S.pptx
Sarah’s summary of her update, including the details of the consultations and cases:
Current and upcoming consultations and changes in legislation
- Draft Code of Practice on dismissal and re-engagement – The Department for Business, Energy & Industrial Strategy
- On 24th January 2023, the government opened a consultation on the draft Statutory Code of Practice that sets out employers’ responsibilities when seeking to change employment terms and conditions.
- The Code sets out a step-by-step process for an employer to follow to explore alternatives to dismissal and to engage in meaningful consultation with trade unions, employee representatives or directly with the affected employees to find an agreed solution.
- It makes clear that employers should not use threats of dismissal as a negotiating tactic and states that, once it is clear that employees will not accept proposed new terms without negotiation, the employer should re-examine its business strategy and plans in light of the potentially serious consequences for employees.
- The closing date for this consultation is 18th April 2023
- Workers (Predictable Terms and Conditions) Bill
- The Government announced on 3rd February 2023 that it is supporting this Bill.
- If passed, the Bill would amend the Employment Rights Act 1996 to give workers and agency workers the right to request a predictable working pattern in circumstances where there is a lack of predictability as regards to any part of their work pattern, the change relates to their work pattern and their purpose in applying for the change is to achieve a more predictable work pattern.
- The government may impose a 26-week service requirement before workers qualify for this right.
- Employees will be able to make two applications in one 12-month period.
- Employers, temporary work agencies or hirers would be able to reject applications based on statutory grounds.
- Workers and agency workers will be protected from suffering a detriment for making an application under the procedure or for bringing a claim to enforce their right to do so, and it will be automatically unfair to dismiss an employee for making an application.
- Protection from Redundancy (Pregnancy and Family Leave) Bill and Carer’s Leave Bill
- Both of these bills have completed their passage through the House of Commons and entered the House of Lords.
- The Protection from Redundancy Bill is seeking to extend the protection against redundancy during or after maternity leave, adoption leave or shared parental leave, and it will extend the protected period for redundancy to 6 months after the end of pregnancy.
- The Carer’s Leave Bill will entitle all unpaid carers to one week’s unpaid leave per year to deal with caring responsibilities.
- Strikes (Minimum Service Levels) Bill
- This Bill has completed the third reading in the House of Commons and will now proceed to the House of Lords.
- If enacted, it would allow the government to make regulations setting minimum service levels during a strike in the fields of health, transport, education, fire and rescue, border control, nuclear decommissioning and radioactive waste management services.
- Worker Protection (Amendment of Equality Act 2010) Bill
- This Bill has made its way through the House of Commons and had its first reading in the House of Lords.
- If passed, it will amend the Equality Act in several ways:
- An employer will be treated as harassing an employee if a third party (e.g. client or customer) harasses an employee in the course of their employment and the employer has failed to take all reasonable steps to prevent that harassment.
- NB There is a caveat to this in non-sexual harassment cases where:
- the harassment involved a conversation in which the claimant was not a participant;
- the conversation included the expression of opinion on a political, moral, religious or social matter;
- the opinion expressed was not indecent or grossly offensive; and
- the harassment is not intentional.
- Where a tribunal finds that an employer breached their duty to take steps to prevent sexual harassment, a Tribunal can award an uplift of 25% on compensation.
Recent Case Law
- Dr Vivienne Lyfar-Cisse v Western Sussex University Hospitals NHS Foundation Trust and others [2022] EAT 193
- The Employment Appeal Tribunal has upheld a tribunal decision that it was not unfair to dismiss an employee after reopening a completed disciplinary process that had already resulted in a final written warning.
- The EAT noted that it was unusual to reopen disciplinary proceedings but, in this case, the tribunal had made no error of law and had given clear reasons of fairness.
- FKJ v RFT and others [2023] EWHC 3 (KB)
- In the initial case, the Claimant’s employer dismissed her for misconduct, and she brought an ET claim.
- During the ET claim, her employer obtained 18,000 of her private WhatsApp messages and used these as evidence against her. (The Claimant claimed this was done by hacking into her phone, but the Respondent said they were found on her work laptop after her dismissal.)
- The Claimant brought a High Court claim for misuse of private information and the Respondent applied for strike out of this claim.
- The High Court refused the strike out application and noted that the WhatsApp messages were private messages from the Claimant to her partner and friend about her professional, social and private life, including health and sex life, and it was obvious the Claimant would have a reasonable expectation of privacy.
Spotlight Areas
- Menopause updates
- Menopause and the Workplace Report, published 28th July 2022, called for the government to introduce the menopause as a protected characteristic, introduce specific menopause leave and include a duty for employers to provide reasonable adjustments for menopausal employees.
- The Government Response to the Committee’s First Report of Session 2022-2023 (published on 24th January 2023) rejected most of the Report’s recommendations.
- MPs argued that specific menopause leave may be counter-productive and women may be forced out of work by “insensitive and rigid sickness policies”.
- Caroline Noakes MP, who chaired the inquiry committee, commented “this is a missed opportunity to protect vast numbers of talented and experienced woman from leaving the workforce and leaves me unconvinced that menopause is a government priority”. She stated that the government has “ignored the significant evidence base” for law reform.
- For now, employees facing discrimination at work due to menopausal symptoms will have to frame their claims around sex, age or even disability discrimination.
- MacDonalds agreement with the Equality and Human Rights Commission to improve their handling of sexual harassment allegations
- In response to concerns about the handling of sexual harassment complaints made by UK staff, McDonald’s has signed a legal agreement with the Equality and Human Rights Commission (EHRC).
- This agreement was made under section 23 of the Equality Act 2006, which provides for the EHRC to enter into an agreement with an organisation if it thinks it has committed an unlawful act.
(McDonalds undertakes not to commit an unlawful act, and the EHRC agrees to refrain from taking enforcement action.)
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- The number of complaints is unknown, but it has been estimated that in 2019 more than 1000 cases were reported.
- McDonalds has committed to:
- communicating a zero tolerance approach to sexual harassment;
- anonymous surveys;
- enhancing policies and procedures; and anti-harassment training.
