Employment Law Bulletin: December

• OTHER DEVELOPMENTS
• IN THE PIPELINE
• LEGISLATION AND REGULATION
• CASES

Welcome to December's Employment news briefing, providing a summary of some of the recent employment judgements and updates.

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

 

 

 

OTHER DEVELOPMENTS

National Minimum Wage Increases

• The Department for Work and Pensions has published its annual rate increases for 2023/24.

o From 1 April 2023, the new rates will apply:
 23+ - £10.42 (previously £9.50)
 21-22 - £10.18 (previously £9.18)
 18-20 - £7.49 (previously £6.83)
 16-17 - £5.28 (previously £4.81)
 apprentices - £5.28 (previously £4.81)

o statutory maternity, paternity, adoption, share parental and parental bereavement pay will increase to £172.48 per week (previously £156.66) and statutory sick pay will increase to £109.40 per week (previously £99.35).

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IN THE PIPELINE

Government Response to Flexible Working Consultation

The government has published its response to last year’s consultation on updating flexible working laws. The response highlights:

• the right to request (not automatically be entitled to) flexible working will become a Day One right (it is currently only available to employees with 26 weeks' continuity).
• employees will be allowed to make two requests (previously one request) within a 12 month period, and the response time for employers will reduce to two months (previously three months).
• there will be a new duty to discuss alternatives to the request if the employer intends to reject the request. It is not clear whether this will be a statutory requirement, giving rise to a cause of action, or just soft guidance.
• the procedure for requesting flexible working will be simplified by removing the requirement for employees to set out how the effects of their flexible working request might impact upon the employer.
• there will be no change to the list of eight reasons the employer has to refuse a request for flexible working.

The Response notes that primary legislation will be required but does not include any drafts or set out a timetable. However, it has been noted they will support the existing Private Members Bill (Employment Relations (Flexible Working) Bill) so the change may happen sooner rather than later.

Government Backing for Private Members Bills

The most recent Private Members Bill which has received government support - Worker Protection (Amendment of Equality Act 2010) Bill:

• Expands employer liability for harassment meaning the employer would be liable where the employee is harassed in the course of their employment by a third party (such as customer or supplier) and the employer failed to take reasonable steps to prevent that harassment.
• Introduces a new duty on employers to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment
• Enforcement provisions back up the new duty – including a 25% compensation uplift that can be awarded where a tribunal finds an employee has been subject to harassment and the employer did not take reasonable steps to prevent such.

Union gets permission to take Tesco fire and rehire case to Supreme Court

Union USDAW can now challenge the supermarket on its plans to dismiss employees and rehire them on less favourable contracts to the Supreme Court despite the Court of Appeal ruling that Tesco could proceed with its plans earlier this year.

The High Court had ruled in the workers favour, but on appeal by Tesco, the Court of Appeal overturned this in July, removing the injunction preventing Tesco from issuing notices of termination.

The Court of Appeal had ruled that the fact the collective agreements contained reference to retained pay being “permanent” only meant it was guaranteed for the life of the particular contract of employment, and did not suggest it would apply beyond that. We will wait to hear the outcome from the Supreme Court.

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LEGISLATION AND REGULATION

Addressing the Tribunal

From 1st December 2022, employment judges and judges of the employment appeal tribunal are to be addressed as ‘Judge’, not ‘Sir/Madam’. Lord Chief Justice and Senior President of Tribunal released a statement:

"The move away from ‘Sir or Madam’ involves modern and simple terminology, reflecting the important judicial role whilst maintaining the necessary degree of respect. We also hope this change in language will assist litigants in person involved in court and tribunal proceedings."

Non-legal members in the tribunal should continue to be addressed as Sir/Madam.

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CASES

Teixeira v Zaika Restaurant Ltd and another

Issue: to what extend can a tribunal reduce a claimant’s compensatory award where the redundancy dismissal was procedurally unfair due to lack of any warning or consultation?

The Claimant was a chef who was made redundant by his employer in April 2020 after significant work reduction due to the pandemic. The Claimant was the only chef who was not a speciality chef, and was the only chef dismissed by the employer. The employer did not follow any procedure before dismissing the Claimant and therefore accepted the dismissal was procedurally unfair.

The tribunal reduced the Claimants compensatory award to zero based on the finding that there was a 100% chance he Claimant would have been dismissed on the same date. The Tribunal said it was not unreasonable for the employer to determine the Claimant (as a non-speciality chef) was in a pool of one and that even if the pool had been larger, he would have the lowest score.

On appeal, the Employment Appeal Tribunal (EAT) disagreed. It held that if the employer had made consultations into the redundancy, this could have resulted in a selection pool of more than one and could have affected the selection criteria. It also held that even if redundancy was inevitable, the consultation process would have delayed the redundancy.

This decision highlights the importance of employers following appropriate procedures and consult properly even where redundancy is highly likely or inevitable.

Arvunescu v Quick Release Ltd

Issue: Can a widely drafted COT3 agreement prevent a subsequent claim for victimisation against the same Respondent?

The Claimant worked for the Respondent for a month before being dismissed. The Claimant brought proceedings for race discrimination and the parties subsequently entered into a COT3 agreement settling the claim.

Two months later, the Claimant brought another claim against the same respondent for victimisation, alleging the Respondent was responsible for his failure to get a job at a subsidiary wholly owned by the Respondent. The Claimant had been rejected for the job one month before the COT3 agreement was settled.

The Respondent argued the victimisation claim had been settled by the COT3. The EAT agreed, stating although the claim did not rise directly or indirectly out of employment, the COT3 was drafted widely enough to include claims that arise: “indirectly […] in connection with the claimant’s employment”.

The EAT also noted the context and purpose of the COT3 was relevant and expressed an intention to settle all claims connected to the Claimant’s employment which existed at the time of the settlement agreement, including the claim for victimisation.

Rodgers v Leeds Laser Cutting

Issue: Is an employee who failed to attend work during the pandemic automatically unfairly dismissed for doing so in the face of serious and imminent danger?

This is the first case relating to Covid-19 and s.100 (1) (d) Employment Rights Act 1996 to reach the Court of Appeal.

The Claimant was dismissed as he continued to be absent from work after his initial isolation note had expired.

The tribunal held his concerns regarding Covid-19 were general and were not attributable to the workplace specifically.

The Court of Appeal agreed and set our 5 questions the tribunal must decide in cases relating to s.100 (1) (d) claims:
1. Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
2. Was that belief reasonable? If so:
3. Could they reasonably have averted that danger? If not:
4. Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
5. Was that the reason (or principal reason) for the dismissal?

The court noted that "it is the policy of the statute that (employees) should be protected from dismissal if they absent themselves (from the workplace) in order to avoid… …danger."

The court also noted that it is sufficient that the employee has a reasonable belief in the existence of danger as well as in its seriousness and imminence, rather than requiring actual danger.

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