EmpLaw Newsletter March 2023
The content of this newsletter is provided for general information purposes only and it is not intended to be legal or other professional advice. It should not be considered a substitute for taking professional advice in relation to specific circumstances. No responsibility can be accepted by Assicurazioni Generali S.p.A. for any action taken as a result of the information provided.
There is a one-off bank holiday on Monday 8 May 2023 to celebrate King Charles’ coronation. Are your staff entitled to an extra day’s paid holiday, and can they insist on taking it on 8 May?
The answer depends on the wording of your employment contracts. If your contracts say employees are entitled to (say) 20 days’ paid holiday plus bank/public holidays, then they will be entitled to an extra paid day’s holiday this year.
But if their contracts say that they are entitled to (say) 20 days paid holiday plus eight days’ bank/public holidays, then they will not be entitled to an extra paid day’s holiday. Similarly, if their contracts specify the total number of days (eg 28 days) without reference to bank holidays, then they are not entitled to an extra day’s holiday, and it is entirely your decision whether to give them an extra day.
Separate from whether they are entitled to an extra day is whether they can insist on taking a day’s holiday specifically on 8 May (bearing in mind the coronation itself is on 6 May). The short answer is ‘no’ – employers are allowed to refuse holiday requests for particular dates (subject to a few exceptions) – but there is little an employer can do if the employee calls in sick on 8 May unless they want to go down a disciplinary route.
Having said that, irrespective of the legalities, many employees will feel ‘entitled’ to an extra day off. We know many of you are planning to take it on the chin and accept the extra day’s paid annual holiday as part of the cost of doing business.
- Extra Day Off for the King’s Coronation?
- Employees Behaving Badly (in employment tribunals)
- Managing a Remote Team: Top Tips for Employers
- Toilet Trouble
- Consultation on Fire and Rehire
- Employment Tribunal Delays
- How to Manage Redundancies Fairly
- Women working for free
- And Finally…
Last year, an independent report commissioned by the government put forward a range of measures to improve support for menopausal employees at work. They included appointing a Menopause Ambassador to publish a report every six months on the progress made to support those going through menopause – a recommendation that the government has accepted (although it’s being called a ‘Menopause Employment Champion’).
However, the government has rejected the other proposals, which would have gone much further. It has declined to produce model menopause policies to help employers and employees, declined to introduce a pilot on ‘menopause leave’, and declined to amend the Equality Act 2010 to introduce a new protected characteristic of menopause, including a duty to make reasonable adjustments for menopausal employees. [back to top]
Smith v Tesco Stores
Litigating employees sometimes think that the tribunal system is against them, or that the judge is biased. They sometimes withdraw their cooperation from the process and insist on going straight to a trial without complying with normal processes first (such as providing further information to clarify their case when asked to by the judge, or exchanging witness statements). To what extent will they be allowed to misbehave before the tribunal throws their case out?
In Smith v Tesco Stores, Tesco said Mr Smith had been dismissed for various conduct issues (including abuse to a customer). He brought a variety of claims, including a variety of vague discrimination claims. The judge asked him to clarify some of those claims, but instead, Mr Smith added a plethora of further allegations. Over various hearings (five in total), Mr Smith continued to try to add to his allegations and failed to follow tribunal orders to shorten and clarify what he was claiming.
At the fifth hearing, Mr Smith refused to speak to the judge (and insisted he would only speak to the tribunal clerk), and spoke over the judge when the judge was talking. This went on for a while, after which Mr Smith walked out of the hearing. The judge concluded that the lack of clarity in Mr Smith’s allegations, combined with his behaviour, meant a fair trial was not possible and accordingly he struck out Mr Smith’s claims.
The Employment Appeal Tribunal agreed the claim should be struck out, but sounded a note of caution that this was an exceptional case. The judge emphasised that “tribunals of this country are open to the difficult”, not just reasonable and cooperative litigants, but said that in this particular case, Mr Smith’s own behaviour had “robbed himself of the opportunity” to have a proper trial. [back to top]
How do you keep your team productive and engaged when you can't see them in person? How do you ensure that your data is secure when your team is working from different locations? Here are some top tips for managing a remote team:
- Communicate: Communication is key when managing a remote team. Make sure that you have regular check-ins with your team members, and that you're clear about your expectations for their work. Use video calls whenever possible, as this can help to build trust and improve communication.
- Set clear goals and deadlines: It's important to set clear goals and deadlines for your team so that everyone knows what they're working towards. Make sure that your goals are achievable and that your deadlines are realistic. If your team is working across different time zones, make sure that you're clear about when you expect them to be available, and that you're flexible if they need to work outside of regular hours.
- Use the right tools: There are a ton of tools out there to help you manage a remote team, from project management software to time-tracking tools. Make sure that you're using the right tools for your team's needs, and that everyone knows how to use them. If you're concerned about security, make sure that you're using a secure platform, and that you're regularly updating your software.
- Encourage breaks and social interaction: Working from home can be isolating, so it's important to encourage your team to take breaks and interact socially. You could set up a virtual coffee break, where everyone takes a break at the same time and has a chat over a video call. You could also encourage your team to take breaks throughout the day and to get outside for some fresh air and exercise.
- Trust your team: Finally, it's important to trust your team. If you've hired the right people, then you should trust that they can work independently and get their work done. Avoid micromanaging and focus on the results, rather than the process. If you're concerned about productivity, then set clear goals and deadlines, and check in regularly to make sure that your team is on track. [back to top]
Earl Shilton Town Council v Miller
You’ve probably never heard of Earl Shiltern, a market town in rural Leicestershire. And after reading this, you’ll probably hope you never have to visit its town council, which got into trouble recently because of its staff toilets.
It’s such a tiny town council that it operates out of a local church. Male employees get to use the church toilet. Female employees had to use a nearby toilet in the adjacent local children’s playgroup, and they had to attract the attention of a member of the playgroup staff to get in, meaning the toilets weren’t suitable if they had to be used in a hurry.
So Earl Shiltern town council had a brainwave. Or not. It decided to let its female employees use the men’s toilets, consisting of a urinal trough and a cubicle. The door could not be locked (there was a sign a woman could hang outside to warn men that a woman was in there, but it often fell off). That meant a woman entering the toilet, or exiting the cubicle, might see a man using the urinal. By contrast, a man would not see a woman on the toilet, as she would be locked in a cubicle.
The Employment Appeal Tribunal said this was sex discrimination. Female employees were forced, by the employer’s inadequate facilities, to see men using the toilet – but men were not forced to see women using the toilet. (There was another issue about the sanitary bin not being emptied on a schedule, but only if requested, which was also held to be sex discrimination.) [back to top]
Firing and rehiring or, as it’s technically called, dismissal and re-engagement, is something employers can do if they need to employees to sign new contracts but some employees refuse. The employer needs to show a good business reason for the dismissal (and offer of re-engagement under the new contract terms) and go through a fair consultation before dismissing. If it does both those things, the dismissal will be fair, rather than unfair, and the dismissed employee won’t have any legal claims they can bring.
This entirely lawful practice comes in for criticism from unions and the press from time to time. This was seen when British Gas dismissed hundreds of its engineers in 2021 and offered them new contracts with new terms and conditions, and more recently when P&O Ferries dismissed 800 employees and tried to replace them with lower-paid agency workers.
The government is introducing a new Code of Practice, which will apply to all employers thinking about going down the ‘fire and rehire’ route (irrespective of how many employees are affected). It includes very detailed consultation processes and a longer timeframe than the law currently requires. Failure to follow the code can result in a dismissal being unfair, and also in a 25% uplift in compensation.
The Code is likely to come into force this year, although we do not have details of the date yet. [back to top]
The average time between an employee starting a claim at the tribunal, and the first hearing, is 49 weeks (a 50% increase in waiting times since 2018).
In complicated cases, that doesn’t mean a final hearing – 49 weeks until a judge meets the two sides and sets a timetable for a full hearing. In straightforward cases (such as an employee saying they haven’t been paid their normal wages), they have to wait nearly a year for a judge to decide whether they’re right. Since there are (rarely) any interest or costs penalties for defending employment tribunal claims, this delay incentivises bad employers not to pay (eg) final salary payments, since they know it will take a year before anything can be done about it. Meanwhile, according to separate statistics issued by the government, there is for the first time a backlog of over 50,000 employment tribunal claims awaiting a hearing or decision, with the number increasing each month. [back to top]
Redundancies are never easy, but they're a fact of life for many employers. If you're faced with making redundancies in your business, it's important to handle the process fairly and transparently. Here are some top tips for managing redundancies fairly:
- Understand the legal requirements: You need to ensure that you're following the correct procedures and that you're not discriminating against any employees. Make sure that you're familiar with the relevant legislation, including the Equality Act 2010 and the ACAS Code of Practice on handling redundancies.
- Consult with employees: Consultation is a mandatory part of the redundancy process, and it's important to involve employees at every stage. Make sure that you're clear about the reasons for the redundancies, and that you're open to feedback from your employees. You may need to consult with trade unions or other employee representatives, so make sure that you're following the correct procedures.
- Be transparent about the selection criteria: This means that you should have clear criteria in place, and be sure that you're applying them consistently. You should also be clear about the weighting of the criteria.
- Offer support to affected employees: Redundancy can be a difficult and stressful time for employees. Support can include offering career coaching, providing references, or possibly offering outplacement services, which can help employees to transition to new roles.
- Consider alternative options: Before making redundancies, you are legally required to explore whether there are any alternative options available. This could include moving the employee to a vacant role for which they are qualified, reducing working hours, or introducing flexible working arrangements. It's important to explore all options before making redundancies, as this can help to reduce the impact on your employees and your business.
- Review your redundancy policy: Finally, it's important to review your redundancy policy regularly and to make sure that it's up to date with the latest legislation. This can help you to avoid any legal issues and to ensure that you're managing redundancies fairly and transparently. We can help you with creating, or updating, a redundancy policy, and we can also help you with the whole process. [back to top]
Research by the TUC shows that, because of the gender pay gap (currently 14.9%), women work for free for 54 days. Women's Pay Day, the day women stop working for free, was 23 February 2023.
On the one hand, this is a step in the right direction – it is two days fewer than women worked for free in 2022. But there are a series of regional and other variations. Women aged between 50 and 59 work for free for 76 days compared with men. The gender pay gap is greatest in the South-East of England, at 17.9%, compared with other parts of the UK. The gender pay gap is also affected by industry sector, with finance and insurance having the largest sector-based gender pay gap of 31.2%. [back to top]
According to an article in Personnel Today, new buzzwords are gaining traction in many workplaces.
First of all, we have one you’ll have heard of: ‘Quiet Quitting’, referring to employees who turn up to work intending to do just enough work to avoid being dismissed. Its lesser-known cousin is ‘Quiet Firing’, with 439m views on TikTok. Quiet firing is when employers deliberately hold back on training and development in the hope of pushing someone out – an approach which would probably amount to constructive dismissal if it could be proven (and if the employee has been working for at least two years).
But our personal favourite is ‘Frolleagues’. Apart from possibly being the world’s ugliest word, it describes colleagues who are also friends. Better, we suppose, than ‘Collenemies’. [back to top]