Employment Law Top Ten of 2024

Ms Toure is a French national of African origin and a Muslim. She had a disability as defined by the Equality Act 2010 (a pituitary gland tumour and asthma). Comments were made about her accent and her appearance, including being described as a “beautiful black woman”. She was also asked why she wore a headscarf.

During a team meeting in August 2020, her line manager (who kept a list of the team’s birthdays) acknowledged her birthday to the team. Ms Toure then emailed her line manager explaining that although she had appreciated the birthday wishes she did not want her personal information shared. She asked to be removed from the list.

Ms Toure raised an informal complaint and later a formal grievance about how her expenses claim had been handled and the lack of training opportunities. The grievance was mostly not upheld, nor was her second grievance. She went off sick for work-related stress and asked her line manager to keep correspondence to a minimum and limited to email. During the first three weeks of her absence, she was contacted 11 times and received another birthday card.

The Employment Tribunal accepted that some of the correspondence was because of Ms Toure’s lack of proactivity about reporting her sickness absence. None of the contact, including the birthday card, was intended to harass her. However, the correspondence had the effect, even if not the purpose, of creating a hostile and intimidating environment for her and this constituted disability-related harassment.

This case is a useful reminder for employers to consider how and when to contact employees on sick leave and to be alert to the impact of such correspondence, even where it is sent with the best of intentions. Clear and transparent policies are important and particularly the provisions for contact during sickness absence, taking into account of course the employee’s views about how they wish to be contacted and the frequency.

As mentioned at the outset, it’s a tricky balance for employers especially because Acas’s guidance on the matter suggests that employees who are absent because of a mental health condition often benefit from regular contact with their employer.

Reference:

Toure v Commissioners for HM Revenue and Customs ET June 2024

At the age of 61 and after 20 years’ service, Mr Bathgate accepted enhanced redundancy terms and signed a settlement agreement. There was a provision for an “additional payment” to be paid in June 2017, but this was only paid to those under 61. Mr Bathgate was informed that he would not receive the additional payment on 26 June 2017.

He brought an Employment Tribunal claim arguing that not paying the additional payment amounted to post-employment age discrimination. The settlement agreement had listed various claims to be settled, including direct or indirect age discrimination along with a general waiver of “all claims…of whatever nature (whether past, present or future)”. The company argued that the settlement agreement prevented Mr Bathgate from pursuing the claim.

The Employment Tribunal agreed. The age discrimination claim had been validly settled.  Even though it was a potential future claim when the agreement was signed, it was identified in plain and unequivocal terms. The EAT disagreed and held that the settlement agreement was unenforceable because unknown future claims could not be waived. The Court of Session upheld the Employment Tribunal decision. Age discrimination claims were waived in the settlement agreement even if they could not be known of at the time of it. A future claim could be settled if “it is plain and unequivocal that this was intended”.

Bathgate is not binding on Employment Tribunals in England and Wales but is “highly persuasive”. However, we then had the Clifford decision. Mr Clifford had been absent from work because of ill-health from September 2008 and in 2012 he raised a grievance about the lack of salary increases and failure to transfer him to IBM’s Disability Plan. Under the terms of a settlement agreement, Mr Clifford waived the right to bring various claims and IBM agreed to move him to the Disability Plan on 6 April 2013. This meant he would receive a disability salary with discretionary increases. His subsequent claims of direct, indirect and disability-related discrimination, for not having any salary reviews while on the Disability Plan, were struck out by the Employment Tribunal as they were precluded by the settlement agreement. The EAT agreed that the disability discrimination claims came within the terms of the waiver.

References: 

Bathgate v Technip Singapore PTE Ltd Court of Session December 2023

Clifford v IBM United Kingdom Ltd EAT June 2024

There have been long-standing concerns that some employers make deductions from tips, for example, for “administrative fees” or retain a proportion of tips. Under the Act, employers must ensure that workers receive “tips, gratuities and service charges” (“tips”) in full and that tips are allocated in a fair and transparent way.

All tips paid on or after 1 October 2024, over which the employer exercises control or significant influence must be allocated fairly to workers, including eligible agency workers and payment in full (less deductions such as tax and NIC) must be made no later than the end of the month following the month in which the tip was paid.

The Act only applies to “qualifying tips” which are:

• Employer-received tips – paid by the customer which are received by the employer, such as tips made by credit or debit card and paid into the employer’s bank account before being distributed or where the tip is received through a mobile app.
• Worker-received tips – such as cash tips paid by the customer and not received by the employer. These are only covered by the Act if they are subject to employer- control or the employer has significant influence over their distribution, for example, the employer directs that tips are shared amongst workers or shared at the end of the shift.

Employers must have a written tipping policy and keep records for three years of all qualifying tips received and the amount allocated to each worker. Interestingly, the Code of Practice states that a fair allocation and distribution of tips does not necessarily mean paying the same proportion of tips to all workers. However, employers should use fair and reasonable factors to determine their tipping practices and the Code of Practice gives examples. For instance, the type of role/work and distribution between front of house and backroom workers, basic pay and hours worked when tips are received, individual and/or team performance and seniority. Employers need to avoid unlawful discrimination when applying the factors.

References:

The Employment (Allocation of Tips) Act 2023

Code of Practice on Fair and Transparent Distribution of Tips

Many employers are facing this scenario and as this case is possibly the first Employment Tribunal decision on the point, but with more cases likely in the future, this decision appears at number seven.

Miss Wilson was a senior manager at the FCA. She had worked there since 2005 and had line management responsibilities for 14 staff. In 2020, most of the staff worked remotely. Once lockdown restrictions were lifted, the FCA, introduced a hybrid working policy where staff were required to attend an office for 40% of their time and work remotely for 60%. Miss Wilson wanted to work remotely full-time and made a flexible working request on 9 December 2022.

This was discussed at a meeting with the line manager, Miss Lipscombe-Mitchell who refused the request on 2 March 2023.

It was accepted that Miss Wilson had performed very well when she worked from home and had built effective relationships with colleagues. However, the FCA’s view was that approving the request could have a detrimental impact on Miss Wilson’s work and a negative impact on Miss Wilson’s input in management strategy meetings.

Miss Wilson unsuccessfully appealed the decision and brought an Employment Tribunal claim. She argued that the FCA failed to communicate the appeal outcome within three months and that the rejection of her flexible working application was based on incorrect facts.

The first part of her claim was upheld as the appeal outcome letter was sent 21 days after the statutory decision period. Miss Wilson was awarded £643, the statutory limit on a week’s pay.

The second part of her claim was dismissed. The Employment Tribunal considered the factors the FCA addressed when deciding that there would be a detrimental impact on the quality and performance of Miss Wilson’s work if she worked remotely full-time. For instance, not meeting new staff members, not having a visible presence in the office to provide structured or informal/ad hoc advice and support to team members and not attending in-person events, conferences and planning meetings. The Employment Tribunal found that the FCA gave clear and cogent evidence about their approach to the flexible working application and their decision was not based on incorrect facts.

Reference:

Wilson v the Financial Conduct Authority ET January 2024

The Government’s response to the review explored five specific themes.

• What initiatives can help raise awareness, reduce stigma, and capitalise on the productivity of autistic employees? The availability and sources of advice for employers need to be publicised as well as the benefits of employing autistic people. Organisations can also measure themselves against best practice by considering the Autistica Neurodiversity Employers Index.
• What more could be done to prepare autistic people effectively for beginning or returning to a career? Recommendations include identifying and promoting cross-industry autism employment support groups and internships and apprenticeships for autistic young people to gain work experience and skills.
• How can employers adjust recruitment practices to meet the needs of autistic applicants? Employers have a legal duty to make reasonable adjustments to the interview process for disabled applicants. However, many traditional recruitment practices do not work well for autistic people. Consider instead practical tests and assignments to be completed before interview and providing interview questions in advance. Initiatives such as the Disability Confident scheme will help autistic jobseekers to identify supportive organisations.
• How can employers support autistic people already in their workforce? A lack of understanding of autism amongst employers can be addressed by accessing the extensive resources available such as the CIPD and Acas guidance. The work environment is also important – hotdesking, bright lighting or high noise levels may contribute to sensory overload.
• How can employers encourage and support autistic staff to develop and progress their careers? Promoting employee resource support networks and using mentors are important as well as encouraging senior personnel who are autistic to act as role models.

References:

The Buckland Review of Autism in Employment April 2023

The Buckland Review of Autism in Employment: Report and Recommendations February 2024

There is now a day-one right to make a flexible working request for requests made on or after 6 April 2024 and changes have been made to the statutory request procedures. Employees can make two requests a year and there is no need for the employee to explain the impact of their request on the employer. Significantly, employers need to consult with employees before rejecting a request and have to deal with requests within two months but this can be extended if agreed. Acas has updated its Code of Practice to reflect these changes.

Regulations in force on 6 April 2024 introduced a day-one right to carer’s leave where an employee has to provide or arrange care for a dependant with a long-term care need. This is someone who has a physical or mental illness or injury who is likely to need care for more than three months, or a dependant with a disability as defined by the Equality Act 2010, or a dependant who needs care because of their old age. It is one week’s unpaid leave a year. Notice is required which is the longer of twice as many days as the leave requested or three days’ notice. Employers can postpone the leave if it is unduly disruptive to the business, but they must allow the leave to be taken within a month of the original date requested. Employees are protected from detriment and dismissal for taking or asking to take carer’s leave.

Since 6 April 2024, there is more flexibility when taking paternity leave. The two weeks of paternity leave can be split into two separate blocks of one week and can be taken during the first year following the birth or adoption (it had to be taken within eight weeks previously).

Finally, an employee on maternity, adoption or shared parental leave, whose role is being made redundant, already had priority over other employees in being offered any suitable, alternative employment. New Regulations extend this to pregnant employees and the protected period starts when the employer is notified of the pregnancy on or after 6 April 2024 and ends when maternity leave begins. For maternity and adoption leave ending on or after that date, the protection period is 18 months after the birth or the adoption placement. For shared parental leave of six consecutive weeks or more, starting on or after that date and where maternity or adoption leave has not been taken, the protected period ends 18 months after the date of the birth or adoption placement.

References:

The Flexible Working (Amendment) Regulations 2023

The Employment Relations (Flexible Working) Act 2023 (Commencement) Regulations 2024

The Carer’s Leave Regulations 2024

The Paternity Leave (Amendment) Regulations 2024

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024

Mrs Wright-Turner had ADHD and she also suffered from PTSD following her previous role supporting the Grenfell Tower fire response. That diagnosis was made shortly before starting her new job with the London Borough Council of Hammersmith and Fulham.

She had a senior role at the Council and was responsible for setting up a new department but before starting work, she had already identified several budgetary issues. She often worked extremely long hours, leading to exhaustion and anxiety but felt unable to take holiday or sick leave. The Chief Executive was concerned that Mrs Wright-Turner had not mentioned her ADHD during the recruitment process. This led to Mrs Wright-Turner feeling uncomfortable and humiliated. She suffered a breakdown and a panic attack and was signed off work for a month with PTSD and anxiety and advised to have no contact with work. Her probationary period was extended by three months (and she remained off work throughout) before being dismissed when her extended probation ended.

Mrs Wright-Turner appealed that decision, raised a grievance and then brought multiple Employment Tribunal claims including disability discrimination and harassment. She argued that her probation period had been extended whilst on sick leave and without any opportunity to discuss her performance issues, she was dismissed without proper explanation, the Council responded inadequately to the grievances and appeals and were in breach of the Acas Code of Practice on Disciplinary and Grievance Procedures.

Her claims were upheld and the Employment Tribunal found that because of the impact on her health, it was unlikely Mrs Wright-Turner would work again. It awarded past loss of earnings of over £327,000, future loss of earnings up to retirement of almost £900,000 and over £600,000 for loss of pensions. There was also an award of £60,000 for injury to feelings (which exceeded the highest Vento band) and £60,000 for psychiatric injury. For non-compliance with the ACAS Code of Practice, the Employment Tribunal awarded an uplift of £271,479.85. Significantly, an award of exemplary damages of £15,000 was made against the Council for oppressive, arbitrary or unconstitutional conduct on the basis that some Council witnesses had attempted to deliberately mislead the Employment Tribunal. In total, Mrs Wright-Turner was awarded £4,580,587.39.

Reference:

Mrs R Wright-Turner v London Borough Council of Hammersmith and Fulham and Ms K Dero ET September 2024

What do the Regulations cover?

• They define part-year and irregular hours workers. A worker is a part-year worker, in relation to a leave year, if, under the terms of their contract, they are required to work only part of that year and there are periods within that year (during the term of the contract) of at least a week which they are not required to work and for which they are not paid. A worker is an irregular hours worker, in relation to a leave year, if the number of paid hours that they will work in each pay period during the term of their contract in that year is, wholly or mostly variable.
• There is a new accrual method to calculate statutory holiday entitlement for part-year and irregular hours workers in the first year of employment and beyond. Holidays accrue at a rate of 12.07% of hours worked at the end of each pay period. However, an average of working hours over a 52-week period is needed to calculate holiday accrual for part-year and irregular hours workers on sick leave or family-related leave.
• Employers can choose to pay rolled-up holiday pay to part-year and irregular hours workers. Once again, this applies to leave years beginning on or after 1 April 2024, calculated as 12.07% of normal pay in each pay period.
• There are provisions relating to the carry-over of leave. These include the scenario where a worker is unable to take some or all of their statutory holiday entitlement because of taking maternity or other family related leave and they can carry forward up to 28 days of their untaken leave into the following leave year. If a worker is unable to take some or all of their statutory holiday entitlement because of sickness absence then they can carry forward up to 20 days of their untaken leave into the following leave year, provided it is taken within 18 months starting from the end of the leave year in which it was accrued.

The Government has published extensive guidance about the changes.

References:

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023

Holiday pay and entitlement reforms April 2024

The preventative duty relates only to sexual harassment and not other “protected characteristics” and it is in addition to the current protections from discrimination, harassment and victimisation contained in the Equality Act 2010.

Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of either violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Examples include unwelcome physical contact, sexual comments, sexual advances and sending sexually explicit emails/texts.

Significantly, the preventative duty applies to third party harassment (unlike the Equality Act 2010) from, for example, clients, customers, service users or members of the public.

Employers are unlikely to meet the preventative duty without carrying out a risk assessment, taking into account the risk factors for sexual harassment. These include a male-dominated workforce, a workplace culture that permits crude/sexist “banter”, gendered-power imbalances, lone or isolated working, workplaces that permit alcohol consumption, a casual workforce and no policies or procedures to deal with sexual harassment.

What are reasonable steps? These will depend on the employer’s size and resources, its sector, risks in that workplace, contact with third parties and the time, cost and potential disruption of a particular step weighed against its possible benefit. Educating workers and fostering an inclusive culture are important. Other crucial steps are implementing a clear anti-harassment policy (and reviewing it regularly) and training for workers and managers.

If someone brings a successful sexual harassment claim and compensation has been awarded, the Employment Tribunal must consider whether the employer has breached the preventative duty. If it has, there can be a compensation uplift of up to 25%. The EHRC can also take enforcement action against the employer.

References:

The Worker Protection (Amendment of Equality Act 2010) Act 2023

EHRC Sexual harassment and harassment at work: Technical Guidance and Employer 8-step guide: Preventing sexual harassment

Here is a reminder of some of the Bill’s key proposals.

Unfair dismissal – The Bill proposes a “light touch” dismissal process during the “initial period of employment” and this is likely to involve a meeting with the employee to explain the reasons for their dismissal, possibly alongside the right to be accompanied. The Government’s preference is for the IPE to be nine months.

Zero-hours workers – “Qualifying workers” will have the right to be offered a guaranteed hours contract if they work regular hours over a defined period and the reference period is likely to be 12 weeks. They will have the option of accepting or rejecting the offer. In addition, employers will be required to provide reasonable notice of shifts and will be required to make a payment for shifts cancelled, curtailed or changed at short notice.

Fire and re-hire – It will be automatically unfair to dismiss someone who refuses to agree to a variation of their contract except where the variation is to ensure the business can be carried on as a going concern and where there is “genuinely no alternative”.

Supporting working families – Employers will have to state why it was “reasonable” to refuse a flexible working request and the ground/grounds relied on. A new general day-one right to bereavement leave will be introduced and there will also be improved protection for pregnant women and those on family leave returning to work. Finally, parental leave and paternity leave will become a day-one right.

Statutory sick pay – The lower earnings limit and current waiting period of 3 days before SSP is paid will be removed so that SSP is available from the first day of sickness absence.

Protection from harassment – The duty on employers to take reasonable steps to prevent sexual harassment will be extended to taking all reasonable steps. Protection from third party harassment will be reinstated to the Equality Act 2010. Finally, sexual harassment disclosures will count as “qualifying disclosures” for whistleblowing purposes.

Collective redundancy – The obligation to collectively consult arises when 20 or more employees are dismissed “at one establishment” and will apply when the threshold is reached across the whole organisation and not at a particular establishment.

Equality at work – Large employers will be required to produce action plans on how to address their gender pay gaps and how to support employees through the menopause.

Industrial relations – There are numerous provisions in the Bill including an obligation on employers informing workers about their right to join a trade union and repealing some of the previous Government’s trade union legislation including the controversial (and never used) provisions relating to minimum service levels.

References:

The Employment Rights Bill 2024

Employment Rights Bill published

Employment Rights Bill developments

Employment Rights Bill and unfair dismissal