Our employment newsletter: Spring edition

Welcome to our employment newsletter as we hop into the Easter period with plenty to consider from an employment perspective. Whether you are an employer or an employee, we have experts in our team that can support you through whatever challenges you might be facing. In this newsletter we highlight some of the key topics that have come across our desk since the start of the year and consider some of the changes you should be across now.

The importance of early consultation with the workforce in redundancy situations

A recent Employment Appeal Tribunal decision reminds employers that it is important to share redundancy proposals with the workforce at an early stage. Failure to do so could make any resulting dismissals unfair. In Joseph de Bank Haycocks v ADP RPO UK Limited, the Claimant and the wider workforce were not consulted about redundancy proposals before pooling and scoring took place. The criteria for selection and the Claimant’s own scores were not provided to him before his dismissal. This information was, however, provided on appeal. The EAT held that the failure to consult at a formative stage meant that the dismissal was unfair, saying that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the claimant’s …scores), it could not repair [the] gap of consultation in the formative stage’.

The EAT set out the following guiding principles for fair redundancy consultation:

• the employer will normally warn and consult either the employees affected or their representative.
• a fair consultation occurs when proposals are at a formative stage and where the employee is given adequate information and adequate time to respond, along with consideration being given to that response.
• in consultation, the purpose is to avoid dismissal or reduce the impact of redundancies.
• a redundancy process must be viewed as a whole, and an appeal may correct an earlier failing.
• it is a question of fact and degree as to whether consultation is adequate, and it is not automatically unfair that there is a lack of consultation in a particular respect.
• any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process.
• the use of a scoring system does not make a process fair automatically.
• whether it is reasonable to show an employee the scores of others in a pool will be case-specific.

Employers seeking to carry-out a fair consultation process in a redundancy situation should take account of each of the points above and act appropriately from the very moment that redundancies are contemplated.

How should you deal with time off to donate blood?

Many employees choose to donate blood. Blood donation centres generally open beyond normal office hours so it is arguable that employees should not need to take any time off work in order to donate blood. However, what should you do if you are faced with a request from an employee for time off to donate blood?

Here are some pointers:

• does the business already have a policy in place to deal with time off to donate blood during working hours? If so, you should consult this and act accordingly.
• if there is no express policy in place, then is there a custom and practice that has been adopted in relation to time off for this reason? If so, then it is a good idea to follow any previous custom. Failing to do so, without good reason, could lead to allegations of unfairness and/or discrimination in appropriate cases. You should act consistently.
• if there is no express policy and no obvious custom or practice, then the legal position here is that time off to donate blood is not a legal right. It comes with no entitlement to claim the time off as sick leave – other than the time spent actually donating blood and a short rest period thereafter, the employee will not be prevented by sickness from working.
• although there is no legal right to time off to donate blood, you will want to make sure that your managers know how to handle any request. You could choose to adopt a supportive policy, allowing a short amount of paid leave during the working day in order to donate blood. Alternatively, you could make it clear that employees who want to give blood are expected to donate outside of their working hours, except for cases where there is an emergency request for donation.
• there are good reputational reasons that you may wish to promote and support time off for blood donation. It is an important civic duty and, if a supportive and encouraging approach is taken, this could increase employee morale.

Gender pay gap reporting

The Office for National Statistics (ONS) has released annual statistics on differences in pay between women and men by age, region, full-time and part-time status and occupation - compiled from its Annual Survey of Hours and Earnings. Its analysis of the gender pay gap is a measure across all jobs in the UK and is different from compulsory gender pay gap reporting by individual organisations.

Among all employees, as of April 2023, the total gender pay gap was 14.3%. This fell slightly from 14.4% in 2022. There remains a significantly higher gender pay gap among employees aged 40 and over, compared with those under 40 years. For age groups under 40 years, the gender pay gap for full-time employees is 4.7% or below. For age groups of full-time employees aged 40 and older, the gender pay gap is much higher, at 10.3% or more. The gender pay gap increased in 2023 across all age groups, except for those aged 18 to 21 years.

The gender pay gap is also larger among higher earners. For those earning at the 90th percentile, it is 14.8%, compared with only 3.1% for the bottom 10% of earners.

A reminder that contractual agreements can’t be used to get around statutory employment rights

Contractual terms cannot be used to subvert or limit statutory employment rights. Disputes which have their root in statutory employment rights (such as unfair dismissal and discrimination), can only generally be settled through ACAS (using a COT3 agreement) or by signature of a Settlement Agreement, which complies with the requirements set out in section 203 Employment Rights Act 1996 (including a requirement that legal advice is taken by the employee). This principle was reviewed by the Employment Appeal Tribunal in a recent case.

In SPI Spirits (UK) Limited v Zabelin, the Employment tribunal found that the Claimant had been subjected to detriment and automatically unfairly dismissed on grounds of whistleblowing.

The Respondent argued that it would be ‘just and equitable’ for the Claimant’s remedy to be capped at £270,000, as this was the maximum liability on termination included in the contract of employment. The Respondent argued that the Claimant was legally trained and had taken advice on the contract such that the cap should be applied. They further argued that the award should not be uplifted for failure to follow the ACAS Code of Practice, as the Claimant’s written grievance did not contain any protected disclosures. These were made later - verbally. The tribunal disagreed, applied a 20% uplift to compensation and awarded the Claimant over £1 million. The Respondent appealed.

The EAT agreed with the tribunal:

1. Any attempt to limit liability for employment claims in contractual documentation will be ineffective (s203 Employment Rights Act 1996).
2. The fact that the contractual clause was ‘freely negotiated’ did not mean that it would be ‘just and equitable’ to apply the cap. For whistleblowing cases, there is no cap and compensation should reflect the loss caused – the tribunal should not be fettered in its ability to reach an appropriate compensation figure.
3. Although a grievance needs to be in writing for the ACAS Code to apply, the fact that no protected disclosure was included in the written document itself, did not mean that the ACAS Code on grievances did not apply.
4. Regardless, the relevant sections of the ACAS Code, in this case, were those that relate to disciplinary proceedings. Where the employer dismisses or takes other action against an employee because, in substance, of what it regards as culpable conduct, the discipline provisions of the ACAS Code will apply.

Flexible Working to become a Day 1 right from April 2024

Employees currently have the right to make a formal flexible working request, only once they have completed 26 weeks’ service with their employer. As far back as 2022, the government indicated their intention to change this rule to make the right to request flexible working a day one employment right. They have now published legislation making good on their promise.

The Flexible Working (Amendment) Regulations 2023 were laid before Parliament in December 2023. They remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working, and so make the right to request flexible working a day one right.

The new right will come into effect for flexible working applications made on or after 6 April 2024.

The following changes are also being made under the Employment Relations (Flexible Working) Act 2023 and are expected to come into force at the same time:

• Employees will now be able to make two flexible working requests in any 12-month period (they are currently only able to make one).
• Requests have to be dealt-with by employers within 2 months of receipt of a request if no extension is agreed (a reduction from the current 3-month period).
• Employers are not able to refuse a request until they have ‘consulted’ with the employee (although there is no explanation of the level of ‘consultation’ required).
• Employees will no longer have to explain in their application what effect they think agreeing to the request would have on their employer and how any such effect might be dealt with.

Employers should make sure that flexible working policies are amended to take account of these changes.

Five facts about Fit Notes

Fit notes are the written notification of fitness to work which must be provided by an employee when they are absent from work due to sickness. They are still commonly referred to as sick notes.  Here are 5 things you should know about fit notes:

1. By law, a fit note must be presented to the employer for absences extending beyond seven consecutive days. Employers can choose to include a shorter period in their own policies and contracts. Seven days is the default.
2. A fit note issued in the first six months of incapacity cannot exceed three months in duration. Aside from this, there is no limit on the length of time for which fit notes can be issued.
3. The fit note doesn’t contain an unconditional "fit for work" option. Therefore, an eligible healthcare professional can no longer use it to sign an employee back to work with a clean bill of health. Instead, the employee may be declared ‘not fit for work’ or ‘may be fit for work’.
4. Since 1 July 2022, a wider range of healthcare professionals have been able to sign fit notes. Doctors, registered nurses, occupational therapists, pharmacists, and physiotherapists can all sign them.
5. Providing a fit note is not a strict requirement for eligibility for statutory sick pay. Employees are able to self-certify their absence for the first seven calendar days for SSP purposes. After that, employers have to have some evidence of incapacity to administer SSP but they are free to decide what form that takes. It does not have to be a fit note (although, in practice, it usually will be).

Five things you need to know about right to work checks

The right to work checks in place in the UK are complex and detailed. Businesses should take advice on a case-by-case basis to make sure that they stay on the right side of the law. However, we set out below 5 facts about right to work checks:

• You must check all job applicants’ right to work in the UK before you employ them. If you do this correctly in accordance with the government’s requirements then this will provide your business with a ‘statutory excuse’.  That is, a defence against a civil penalty (due to rise to £45,000 per breach in 2024) which would otherwise be payable for employing an illegal worker.
• There are three main ways of checking an applicant’s right to work which, if completed correctly, can provide a ‘statutory excuse’: online if they have a share code; by checking the applicant’s original documents; or by using an identity service provider that offers Identity Document Validation Technology (IDVT). Different methods of verification are required depending on the nationality and immigration status of the applicant involved.
• In some circumstances, an applicant will not be able to demonstrate a right to work using any of the above methods. In such cases you must ask the Home Office (using the Employer Checking Service) to check the applicant’s immigration status. They will provide a Positive Verification Notice (PVN) if the applicant has the right to work. The PVN must be kept as this can be used as a defence against a civil penalty.
• Checks of manual documents must be done in a certain way following a three-step process: Obtain, Check and Copy. The actual documents must be seen in-person. Copies are not acceptable.
• The list of acceptable documents is published by the Home Office and is split between List A (permanent right to work) and List B (temporary right to work). If you conduct the right to work checks correctly before employment begins and obtain documents from List A, you will establish a continuous statutory excuse for the duration of that person’s employment with you. You do not have to conduct any follow-up checks on this individual. If you conduct the right to work checks correctly after obtaining documents from List B, you will establish a time-limited statutory excuse. You will be required to conduct a follow-up check in order to retain your statutory excuse.

And finally, the politics which surround the work fridge and its contents are often the cause of significant workplace friction. Employees who have their lunch taken and eaten are often seriously aggrieved. Usually, HR can resolve such issues by way of a polite note on the fridge door and a suggestion that food is named.

However, one employee in the USA recently revealed on Reddit that he had taken more dramatic steps to identify who had been eating his sandwiches. Upset that his lunch kept being taken from the work fridge, he laced his sandwich with prescription-strength laxatives. He then reported to HR that his lunch (and his medication) had been stolen. The culprit was found by HR in a nearby toilet. HR took no action against the employee who had set-up the prank but sacked the sandwich-stealer (who was also, according to the Reddit article, interviewed by the police in relation to theft of prescribed medication). Although this example is an extreme one, it is a reminder to HR that theft of any sort within the workplace should be taken seriously. As one person commented on the Reddit article - "This is why employers shouldn't disregard lunch thieves. It's only a matter of time until they turn their thieving hands on the employers' things or somehow cause damage to their employer."

Contact our Employment Law Solicitors in Farnham, Reading & Wokingham

Our proactive and down-to-earth team of highly experienced employment law solicitors work from offices in Farnham, Reading and Wokingham. We help clients from all over Berkshire, as well as Oxfordshire, Buckinghamshire and Surrey.

Speak to one of our team today by calling 0808 978 0099 or using the contact form at the bottom of the page and we will respond quickly.