Thank you to those who joined us last Thursday for our HR Informed: Coffee and Catch-up webinar, we hope you found the 30-minute session informative.
The session looked at recent updates and topical matters in the world of employment law, including addressing delegates queries, discussing recent employment law cases, and considering potential future changes to the law. A summary of the discussion is set out below.
The January – March 2023 quarterly statistics demonstrate that claims are continuing to increase. There was a 24.8% increase in the number of claims submitted to the Employment Tribunal compared to the same period last year. This trend is of concern given that there are already significant delays in the Tribunal system.
Recent case law updates
- Jhuti v Royal Mail. Judgment has recently been published on Remedy in this long running case. The Employment Tribunal has ordered Royal Mail to pay approximately £2.3 million to the Claimant as compensation for whistleblowing. The case highlights some key points:
- Despite the Claimant being employed for less than 12 months, Tribunals can make significant financial awards, including career long loss of earnings.
- The case has created a shift to allow the Tribunal to really scrutinise decisions to dismiss in a way which previously was not thought possible.
- The importance of the dismissing officer having all relevant facts before making a decision.
- Investigators and those making decisions should approach matters fairly and consider all facts including ‘rival versions’ of events.
- Maya Forstater v CGD Europe and others. The Tribunal found that the Claimant had suffered direct discrimination because of her expression of gender critical beliefs. The Claimant was awarded over £100,000 in compensation.
- Greasley-Adams v Royal Mail Group Ltd. The Claimant pursued various complaints including an allegation that comments made about him amounted to harassment. The Employment Tribunal found that disparaging comments about the Claimant could have the effect of amounting to harassment, but only once he became aware of them during the bullying and harassment investigation. In the Tribunal’s view, it was inevitable that in the course of a bullying and harassment investigation things would emerge which the Claimant did not like and in the context of that investigation, it was not reasonable for the unwanted conduct to have that effect. The EAT upheld the Tribunal’s decision and dismissed the appeal.
Three Private Members’ Bills received Royal Assent in May (however they are unlikely to take effect until 2024/25 as further secondary legislation is required):
- The Protection from Redundancy (Pregnancy and Family Leave) Act 2023. Currently where an employee is on maternity leave and at risk of redundancy, she is entitled to be offered any suitable available vacancy in priority to other potentially redundant employees. The new Act will extend the protection to cover employees who inform their employer they are pregnant and for a period of six months after returning from maternity leave.
- The Neonatal Care (Leave and Pay) Act 2023 allows eligible employed parents whose new baby is admitted to neonatal care to take up to 12 weeks of paid leave, in addition to other leave entitlements such as maternity and paternity leave. The right to leave will apply from day one of employment, although the right to pay will be subject to a 26-week service requirement; and
- The Carer’s Leave Act 2023 will give employees who have a dependant with a long-term care needs a statutory right to one week’s unpaid care leave per year. This right will apply from day one of employment.
We were asked in advance of the session to provide an update on the Employment Bill. You may recall that the Bill was originally announced in the Queens Speech back in December 2019, and was aimed at supporting workers and families by introducing various employment rights and enhancing existing rights. This Bill had its second reading in the House of Commons on 6 May 2022, however it seems to have dropped off the legislative agenda since then, at least for now. Notably, several private member bills have been introduced specifically to deal with some of the areas that had been set out in the original Employment Bill, some of which have now been approved, such as the neonatal leave and pay, carer’s leave and protection against redundancy for pregnant employees (see above for details). It remains to be seen if the Bill will be resurrected in some way before the next general election, or if it has been abandoned.
Retained EU Law (Revocation and Reform) Bill
Another topic which our delegates wanted to discuss was the Retained EU Law (Revocation and Reform) Bill.
- On 10 May 2023, the government announced that it was scrapping the proposed ‘sunset clause’ from the Bill, which would have automatically revoked most retained EU law at the end of 2023.
- Instead, at least 600 pieces of retained EU law will be set out in a revocation schedule and any laws not listed in the revocation schedule will be retained automatically.
- There are no immediate changes to employment law but there is scope for the government to make changes in time.
- In response to the sunset clause being scrapped, the Department for Business and Trade published a policy paper setting out a number of proposed measures intended to grow the economy, including:
- Removing retained EU case law that requires businesses to keep working time records for the workforce.
- Allowing rolled-up holiday pay and merging the separate leave entitlements under the WTR 1998 (i.e., 4 weeks and 1.6 weeks) into one entitlement, while maintaining the same amount of annual leave overall (5.6 weeks).
- Removing the requirement to elect employee representatives for TUPE consultation for businesses with fewer than 50 employees and transfers affecting less than ten employees, allowing businesses to consult directly with the affected employees.
- Finally, the government intends to legislate to limit the duration of non-compete clauses to three months. There is little detail in the policy paper on how the limit will work in practice, but it does state that the proposed change will not affect clauses which prevent employees from soliciting clients and staff after they leave.
Bullying and Respect at Work Bill
Recently the Bullying and Respect at Work Bill has been presented to Parliament. The proposal is to create a statutory definition of bullying and a new Respect-at-Work Code to set minimum standards for positive and respectful work environments.
At the moment, employees who have suffered bulling can bring a claim for constructive unfair dismissal if they have the qualifying period. However, employees who are bullied in the first two years (unless related to a protected characteristic or related to a protected disclosure) are afforded very little protection.
This is only intended to be a summary and not specific legal advice. If you would like further information or advice, please do contact a member of our team.
The next HR Informed session will be held on Zoom at 10am on Thursday 16 November. Our in-person Annual Update is taking place on 21 September 2023 in Newmarket. Please contact Laura Davidson to sign up to receive full details of this and our future events.