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Our employment newsletter: Summer edition

Welcome to Clifton Ingram's employment newsletter as we edge closer to the first day of summer. 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. As a reminder, brought with it a raft of changes - we have summarised this year’s changes in this newsletter. If you would like to speak to an employment expert on any of these issues, or another employment concern, please get in touch.

Increase in tribunal compensation since 6 April 2024

The changes, which took effect from 6 April 2024, include:

  • The maximum compensatory award for unfair dismissal increasing from £105,707 to £115,115.
  • The limit on a week’s pay going up from £643 to £700.
  • The minimum basic award for some forms of unfair dismissal rising from £7,836 to £8,533.
  • Statutory guarantee pay increasing from £35 to £38 per day.

The 2024 annual update to the Vento guidelines (which give ranges for injury to feelings awards in discrimination cases, depending on severity) have also been published.

In respect of claims presented on or after 6 April 2024, the Vento bands are:

  • lower band - £1,200 to £11,700 (less serious cases)
  • middle band - £11,700 to £35,200 (cases that do not merit an award in the upper band)
  • upper band - £35,200 to £58,700 (the most serious cases), with the most exceptional cases capable of exceeding £58,700

Family leave pay - rate increases from April 2024

With effect from 7 April 2024, the rate of a week’s pay for the purpose of calculating family leave in the UK increased to £183.04 per week. This rate increase impacts statutory maternity pay, shared parental leave pay, adoption pay, paternity pay, and parental bereavement pay.

£183.04 is the maximum amount payable per week under the statutory regimes. Employees receive their actual pay each week if this is lower.

Extension of redundancy protection for pregnant employees and those on family leave

For a long time, the law has given extra protection from redundancy to those on maternity, adoption, or shared parental leave - they have the right of first refusal of any suitable alternative roles which exist in a redundancy situation.

Since April 2024, this protection has been extended by the Protection from Redundancy (Pregnancy and Family Leave) Act 2023.

The table below sets out how the position has changed:

 

The old position The changes When does the change take effect?
Pregnancy No protection. Protected from the date that the employee informs the employer of her pregnancy for the full period of pregnancy. Where the employer is informed of the pregnancy on or after 6 April 2024
Maternity Leave Protected during the period of absence on maternity leave only. Protected for the period of 18 months from the first day of the estimated week of childbirth (EWC). The 18-month period can be altered to start from the child’s actual date of birth where the employee informs the employer of the actual date of birth in writing during their maternity leave period. Where the maternity leave ends on or after 6 April 2024
Adoption Leave Protected during the period of absence on adoption leave only. Protected for the period of 18 months from the date of placement for adoption. Where the adoption leave ends on or after 6 April 2024
Shared Parental Leave Protected during the period of absence on shared parental leave only. Protected for the period of 18 months from birth/placement for adoption provided that the employee has taken a period of at least 6 continuous weeks of Shared Parental Leave. This protection will not apply if the employee otherwise has protection under either the maternity or adoption provisions above.

Protected during period of absence on shared parental leave only (as previously) if fewer than 6 consecutive weeks of leave are taken.

Where the period of 6 continuous weeks of shared parental leave starts on or after 6 April 2024

 

Where an employee suffers a miscarriage before 24 weeks of pregnancy then they will have protection during their pregnancy and for a 2-week period following miscarriage. If they miscarry after 24 weeks of pregnancy then this is classed as a still birth, they are entitled to maternity leave, and they will have the same protection as any other employee taking maternity leave.

Employer Policies should be updated to take account of this change and any personnel involved in redundancy consultation need to be informed of the new extended protection for these categories of employee.

Five things every employer should know about pregnant employees

Employment law recognises that pregnant employees have a unique position in the workplace and need unique protection as a result.

Here are 5 things every employer should know about pregnant employees:

  1. Risk assessment – Under Regulation 16(2) Management of Health and Safety at Work Regulations 1999 all employers must assess workplace risks and alter working conditions or hours of work to avoid any significant risk to the health and safety of new or expectant mothers in the workplace.
  2. Automatic unfair dismissal - During pregnancy a woman is automatically unfairly dismissed (so no need for two years’ qualifying service) if her dismissal is connected with her pregnancy (s99 Employment Rights Act 1996).
  3. Redundancy protection – Where an employer is informed of an employee’s pregnancy on or after 6 April 2024, the employee has additional protection from redundancy for the full period of their pregnancy. She must be given first refusal of any available suitable alternative jobs if a redundancy situation arises.
  4. Discrimination – Pregnant employees are protected from being treated unfavourably because of their pregnancy. The employee doesn’t need to show that she has been treated ‘less favourably’ than someone who isn’t pregnant – no comparator is required.
  5. Time off for ante natal appointments – pregnant employees are entitled to paid time off to attend ante natal appointments.

Detangling direct discrimination, manifestation of belief and lawful limits on protection

The recent case of Omooba v Michael Garret Associates and others has placed religion and belief discrimination back in the spotlight.

To give you a brief overview of the law as it currently stands:

  • Direct discrimination occurs where a person is treated unfavourably because of their religion or belief. It is unlawful and cannot be justified.
  • Article 9 of the European Convention of Human Rights extends this protection beyond the belief itself to cover manifestations of the belief.
  • There are very narrow grounds on which the employer can object to the manner in which the employee manifests their beliefs – in which case, any action will be linked to the conduct and not the belief and will not be discriminatory.

In Omooba v Michale Garret Associates and others, the Claimant was a Christian. She was due to play the lead role in the Respondent's production of The Color Purple, a play based on the book by Alice Walker. The book depicts a romantic relationship between two women. The play proposed to include the lesbian relationship. The Claimant was, at the relevant time, unaware of this.

Before rehearsals started, a comment that the Claimant had posted on Facebook some years previously calling homosexuality sinful and urging Christians to stick to their beliefs was retweeted. Following the retweet, the Respondent dismissed her.

The Claimant claimed religion or belief discrimination, harassment, and breach of contract. She acknowledged that, after reading the script following her dismissal, she would not have played the role. The tribunal concluded that, although her beliefs (applying the criteria from Grainger v Nicholson) ‘scrape[d]’ over the threshold of being protected, her claims should fail.

The Claimant appealed.

The EAT, rejecting the appeal, agreed with the tribunal’s conclusions. In terms of direct discrimination, the Claimant was not dismissed because of her expression of her belief but because of the effect of the adverse publicity from its retweet on the cast, the audience, the reputation of the producers and the commercial success of the production. The tribunal had been entitled to reach this conclusion. The message seems to be that if an employer can persuade a Tribunal that it genuinely dismissed an employee because of external pressure, then it won’t have discriminated. Even if the pressure was directly based on the protected characteristic, the dismissal will not amount to discrimination.

This decision sits rather awkwardly alongside Higgs v Farmor’s School which is currently on appeal to the Court of Appeal. In this case, the Claimant was dismissed after making Facebook posts about her beliefs on same sex relationships and trans rights. Her case of direct religious discrimination succeeded.

The difference between the two decisions appears to be that the ‘reason’ for dismissal in Higgs was the Facebook posts manifesting the Claimant’s belief whereas the ‘reason’ in Omooba was the social media storm which arose from them. It is a very narrow distinction.

What these two cases make clear is that further guidance is needed. This will hopefully come from the Court of Appeal when it hears the appeal in Higgs.

Disability discrimination: Reasonable adjustments

Where an employer knows (or ought to know) an employee is disabled, the duty to make reasonable adjustments applies. Employers must make reasonable adjustments to remove any substantial disadvantage that the employee would otherwise face at work because of their disability.

In the recent case of Miller v Rentokil, the Employment Appeal Tribunal looked at whether it was a reasonable adjustment to place an employee in an alternative role (when their disability meant that they could no longer perform their original role), even though the employee had been unsuccessful in their application for that alternative role.

The Claimant worked as a field-based pest controller. After being diagnosed with multiple sclerosis, he could no longer work in this role. He couldn’t work at heights (which made up around 40% of his role) and could only work slowly.

The Respondent looked at other jobs in the business and the Claimant applied for an administrator role. He was unsuccessful following an interview process and was dismissed. The Claimant claimed that failing to place him in the administrator role on a trial basis amounted to a failure to make reasonable adjustments under Equality Act 2010. The tribunal upheld his claim.

On appeal, the EAT agreed with the tribunal. The Claimant was placed at a substantial disadvantage because of his disability - he could no longer carry out his duties in his field-based role. Moving the Claimant to an alternative role was a reasonable adjustment which would remove that disadvantage. The Claimant had shown that the alternative role was potentially appropriate and suitable. The burden then passed to the Respondent to show that it was not reasonable to have put the employee into that role. The tribunal concluded that they hadn’t been able to show this, especially as they had not even given it a go on a trial basis.

Where an alternative role is an option which will avoid a substantial disadvantage to a disabled employee, employers need to tread very carefully if they choose not to offer it. Employers need to be able to put forward compelling arguments why the alternative role is not suitable. Allowing the employee to take-on the role on a trial basis is always a good idea. If the role is unsuitable, then the trial will provide important evidence to support this. If the role is suitable, then the adjustment is a reasonable one and the employer should make it permanent.

Tribunal was wrong to conclude that a decision to dismiss an employee for posting a racist ‘joke’ on his employer’s intranet fell outside the band of reasonable responses

There are several different elements which make up the claim of unfair dismissal where an employee has been dismissed for misconduct:

  • The employee must be eligible: they must be an employee and must have over 2 year’s continuity of service.
  • The employer must be able to identify a potentially fair reason to dismiss. Conduct is one of the five potentially fair reasons.
  • The employer must have acted fairly in dismissing for that reason. Where the reason for dismissal is conduct, the tribunal will look at the test from BHS v Burchell: did the employer hold a reasonable belief, following a reasonable investigation, that the employee was guilty of misconduct.
  • The employer must also show that their decision to dismiss did not fall outside the ‘band of reasonable responses’ that a reasonable employer might have when faced with the same situation.

In the recent case of Vaultex v Bialas, the Employment Tribunal looked at the band of reasonable responses, confirming that even if another outcome might also have been fair, as long as the employer’s actions did not fall outside of the range of reasonable responses, dismissal will not be unfair.

In this case, the Claimant posted a racist joke on the Respondent’s intranet. The Claimant had a long, unblemished service record and apologised for his actions. The Respondent dismissed him for gross misconduct.

The Tribunal held that the Claimant had been unfairly dismissed. The Tribunal concluded that, given the Claimant’s record and the fact he had apologised, any sanction above a final written warning fell outside the band of reasonable responses that a reasonable employer could have reached.

The Respondent appealed. The EAT held that the tribunal had wrongly substituted its own view. The EAT concluded that ‘any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case’. It substituted a finding of fair dismissal.

This case is a reminder that there may be several ‘right answers’ in disciplinary cases. Just because another employer may have decided on a different sanction, does not mean that the sanction imposed will be unfair. The law recognises that there are a range of appropriate responses in any situation.

New Flexible Working rules since 6 April 2024

Since 6 April 2024 all employees, regardless of their length of service, have the right to request flexible working. The Flexible Working (Amendment) Regulations 2023, which were published last December, make it clear that flexible working will, for applications made on or after 6 April 2024, be a Day 1 right for all employees.

The wider changes are as follows:

  • Removal of the requirement for employees, in their written request, to set out what effect the proposed flexibility would have on the employer’s business and how any effect could be dealt with.
  • Increase to the number of flexible working requests which can be made in any 12-month period from 1 to 2.
  • Reduction in the primary time period within which flexible working requests must be dealt with (including any appeal) from 3 months to 2 months. As before, it will remain possible, by agreement with the employee, to extend this time period.

Ten top tips for handling underperforming employees

Employers need their employees to perform effectively and productively in their roles. A functioning workforce is key to business success. What should you do if you have an employee who is underperforming? Here are our top tips:

    1. Make sure the employee knows what is expected of them. You can only manage performance effectively if you can point to clear communication of the requirements of the role. Job descriptions are a good starting point, together with a robust training and appraisal process.
    2. Don’t let issues fester. If a performance issue arises then discuss it with the employee straightaway.
    3. If an employee does not have eligibility to bring an ordinary unfair dismissal claim (i.e. they have less than 2 years’ service), then the employer may weigh up the risk and decide to move to dismiss without following a full performance management process. The unfair dismissal risk here is low but the employer should always check the surrounding circumstances for any risk that their decision could be challenged as discriminatory in some way – say, for example, if the employee is disabled.
    4. Check if there are any underlying reasons for a drop in performance before taking any formal steps. If an employee has previously been a good performer but has hit a dip, then there may be other issues at play. For example, ill health, caring responsibilities, bullying or harassment. These need to be investigated and supported.
    5. If the employee is or might be disabled and the employer is aware of this, then the duty to make reasonable adjustments kicks in and the employer needs to consider whether reasonable adjustments need to be made to any proposed performance management process.
  1. If a formal performance management process is necessary, then it should not take place in a vacuum. Employers need to be able to show that they have acted reasonably should the process end in dismissal. Setting clear performance targets, offering training and support are all things that the employer can do to support the employee through the process.
  2. A formal performance management process will generally involve the creation of a performance improvement plan against which the employee’s performance is assessed at intervals. Escalating formal warnings are issued if the employee is unable to hit the targets set. Acas recommends that at least two warnings should be issued before an employer moves to dismiss an employee for poor performance.
  3. It is not usually appropriate to dismiss an employee for poor performance without going through a structured performance management process first. The exception to this would be where the employee has committed an act of gross negligence. Such circumstances will be very rare.
  4. The employee has the right to be accompanied by a work colleague or trade union representative at any performance management meetings which could lead to a formal disciplinary warning or dismissal.
  5. The Acas Code of Practice applies to any ultimate decision to dismiss on grounds of poor performance. Employers should be aware of what the Acas Code requires. Tribunals can uplift compensation in any resulting claim by up to 25% if it is not followed.

 

And finally, supporting wellbeing in the workplace is of increasing importance to employers. One hot topic is how those going through menopause or perimenopause can be best supported. Avanti West Coast’s latest attempt to tackle this may have resulted in a bit of an ‘own goal’. They have come under fire after handing out a goodie bag to female employees containing ‘gimmick’ gifts. Avanti confirmed that it had given staff a bag filled with 'gifts' including a jelly baby 'in case you feel like biting someone's head off', a paper clip 'to help you keep it all together', a tissue 'if you're feeling a bit emotional' and a pencil 'to write down the things you might forget'. Other items included a fan 'handy for the hot sweats'.

The Aslef train drivers' union shared a photo of the list and wrote on X:

Avanti the menopause is debilitating for some women, it's not a joke…Rather than handing out insulting gimmicks to female employees you'd be better placed developing workplace policies and procedures that value and support peri-menopausal and menopausal women!

A reminder, if one was needed, that employers should think very carefully about the messages that their actions send out. Be aware of the full range of employee experience when dealing with sensitive topics such as menopause.

We hope you've found some interesting reading in this season's newsletter. Please get in touch if you'd like to speak to one of our employment experts.

With best regards, the team at Clifton Ingram

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