Hello and welcome to our employment newsletter packed with practical insights and up-to-date advice to help you navigate the ever-evolving world of employment law. If you have any questions or need further clarification on any of the topics discussed, don't hesitate to reach out. We're here to help, whether you're an employer seeking advice on compliance and best practices, or an employee looking to understand your rights.
EAT confirms that future claims can be settled by Settlement Agreement
Employers can avoid employment claims from departing employees by using Settlement Agreements. These Agreements must follow a specific format and the employee must get legal advice before signing. Recent legal cases have examined if Settlement Agreements can validly settle future unknown claims—those based on facts not existing and not known at the time of signing.
In Bathgate v Technip, the Scottish Court of Session ruled that future unknown claims can be settled if the waiver is clearly worded. This has now been affirmed by the Employment Appeal Tribunal in Clifford v IBM. In this case, the Claimant, who was absent due to disability, had entered a Compromise Agreement (now called a Settlement Agreement) in 2013. It was agreed that he would remain employed but would move to the Respondent’s disability plan. Under the Agreement, the Claimant waived the right to bring disability discrimination claims, whether they were or could be in the contemplation of the parties at the date of the Agreement, or not. An exception in respect of future claims did not apply to matters arising from the Claimant’s transfer to the Plan.
The Claimant later claimed disability discrimination due to receiving no increase in payments under the Plan. The Tribunal struck out his claim. It was a future claim but was clearly barred by the terms of the Compromise Agreement. It made no difference that the Claimant remained in employment.
This case is a reminder that it is possible to settle future unknown claims using a Settlement Agreement but that the wording used is of crucial importance. It needs to be clear and expressly state that it covers claims which were not or could not have been in the contemplation of the parties when they signed the Agreement.
5 things employers should do when they receive a flexible working request
From April this year, the right to make a flexible working request became a day one right for all employees. Employers should have a clear policy in place, setting out how flexible working requests should be made and how they will be dealt with by the business. Here are 5 things employers should do on receipt of a flexible working request:
- Make sure that the request has been made in writing so that a clear paper trail exists. Valid requests should include the following: the date; state that it is a request made under the statutory procedure; specify the change that the employee is seeking and when they wish the change to take effect; and state whether the employee has previously made an application to the employer and, if so, when.
- Check that the employee has not made more than two requests in the last 12 months.
- Make a diary note of the time limit for the business needing to deal with the request. Employers have two months from the date of request to respond, including dealing with any appeal.
- Check at an early stage whether the impetus behind the request might be a disability. Be mindful that the duty to make reasonable adjustments will apply and a different procedure might need to be adopted. In particular, the request should be granted if it is reasonable and would remove any substantial disadvantage the employee is facing in the workplace. You should not simply apply the eight grounds for refusal which apply to flexible working requests.
- Make sure there are no current valid requests from the employee. Only one live application can be considered at any one time.
Employers should be careful about how they behave after an employee resigns
If an employee submits their resignation to their employer, it is a clear indication that the employment relationship is coming to an end. For whatever reason, the employee is moving on. Unless the employee is resigning because of some historic poor behavior or discrimination on the part of the employer, the risk of claims is low.
However, a recent Employment Tribunal case serves as a reminder to employers that their behavior following receipt of an employee’s resignation is important. Employers should be careful not to hand their employees an employment claim just as they are heading out the door. In Manjula v immigration and Nationality Services Ltd and IANS solicitors, the Claimant qualified as a solicitor in India before re-qualifying in the UK. Her UK employer obtained a sponsor licence for her, extended her work visa and employed her as a newly qualified solicitor. However, she then resigned to go to work for KPMG. She discussed the resignation with her supervisor and agreed to keep working for another two months (to help with handover of work).
However, when the Claimant told the Respondent’s director about her resignation, he slammed his hands on the table and shouted at her. He accused her of breaching his trust (by leaving once he had paid to extend her visa) and said that he would make her pay for this. He said (in an email) he did not want her to continue to work, she should hand in her notice immediately and that it was her last day. The Claimant was not paid any notice pay.
The Claimant brought several Tribunal claims, including for unfair dismissal, which the Tribunal upheld. It said the Claimant had been summarily dismissed for misconduct (i.e. ‘breach of trust’), but this was unfair as the employer did not genuinely believe in her misconduct or follow a fair procedure. The real reason for dismissal was that the Respondent wanted to avoid her working (or needing to pay for) her notice period.
Sexual Harassment
Sexual harassment can take several different forms. It can refer to unwanted conduct of a sexual nature and this is what most people understand by the term. Under the Equality Act 2010, the term also has a wider meaning. It incorporates unwanted conduct which occurs because a person has either rejected or accepted the sexual advances of another.
Employers need to be aware that unlawful sexual harassment can occur in these wider circumstances as well.
The recent Employment Tribunal case of Merriman v Bugibba Independent is an example of this wider application of the term. The Claimant in this case was a doughnut decorator. She alleged that a male colleague had given her a bear hug and touched her bottom at work. After she complained about this incident, the colleague in question made horrible remarks about her calling her a pot washer and swearing at her. The Respondent sided with the male colleague and eventually dismissed the Claimant.
The Tribunal found that the Claimant had been sexually harassed. The ‘bear hug’ incident was clearly unwanted conduct of a sexual nature which had violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, as its purpose or effect. The actions of her male colleague after she had rebuffed his advances were also sexual harassment – being motivated by her rejecting him.
The Claimant was awarded over £30,000 in compensation.
Fertility issues and the workplace
The number of individuals undergoing fertility treatment in the UK is increasing every year. In 2021, nearly 80,000 rounds of IVF were completed.
IVF is a workplace issue. The vast majority of those undergoing fertility treatment (or who have a partner undergoing treatment) are highly likely to be working whilst doing so. What does the law say in this area? What are an employer’s obligations towards those undergoing fertility treatment? Here are some key facts:
- There is no legal right to time off to undergo fertility treatment (or to accompany a partner to fertility treatment).
- More women than men will go through fertility treatment. Employers need to be aware of the risk of discrimination claims if they treat a person undergoing fertility treatment unfavourably. This could amount to sex discrimination.
- Employers must not act in a way which undermines trust and confidence in the employment relationship. How you treat an employee undergoing fertility treatment is important. If an employee feels unsupported, then they could resign and claim constructive dismissal – that is, that the employer breached trust and confidence by its attitude.
- When an embryo is reintroduced to a person’s body as part of the IVF process, they will be classed as pregnant. They will then have full pregnancy rights and protection against pregnancy-related discrimination from this moment until the pregnancy ends or until two weeks after a failed IVF cycle – this is known as the ‘protected period’.
Rather than focusing on the legal rules on this topic, we advise employers to focus on how they can best support employees undergoing fertility treatment. A sympathetic and informed approach to fertility issues will help avoid the risk of claims. Consider initiatives to raise awareness and get the conversation started. Employees need to be able to speak openly so that employers can offer support. Fostering a culture that allows for these conversations is very important.
Handling Disciplinary Processes with Police Involvement: Top Tips
Internal misconduct can sometimes lead to police involvement, complicating matters for employers. Here are some tips to navigate such situations:
- Evaluate Before Involving Police: Don’t automatically involve the police for criminal allegations at work. Only do so if you firmly believe the accusation, if true, would be a crime. Carefully consider all circumstances before deciding.
- Understand the Burden of Proof: The employer’s burden of proof is lower than that of the police. Employers need only prove allegations on the ‘balance of probabilities’ (that is, more likely than not), whereas police require ‘beyond reasonable doubt.’ Lack of police action doesn’t prevent internal action.
- Employment Law Still Applies: Even if an allegation is potentially criminal, employment laws, including unfair dismissal rights and the ACAS Code of Practice, still apply.
- Employee Co-operation: If an employee refuses to answer questions to avoid self-incrimination, don’t force them. This could lead to constructive dismissal claims.
- Gathering Evidence: If an employee won’t participate in the investigation, try to gather evidence through other means. Ensure your investigation is fair and thorough.
- Timing of Disciplinary Actions: You don’t have to wait for police proceedings to finish before conducting a disciplinary hearing. The ACAS Code of Practice advises acting ‘without delay.’ Delays can make evidence stale and prolong suspension on full pay.
- Document Decisions: If you decide to proceed with disciplinary actions despite police involvement, document your decision. Explain why you chose to move forward, showing you considered delaying.
These tips can help manage disciplinary processes effectively, even with police involvement.
Employment Appeal Tribunal (“EAT”) emphasises the importance of consulting about the proposed pool for selection in redundancy cases
Employers who need to make only a small number of redundancies must make sure that their consultation process doesn’t end up being a ‘tick box’ exercise.
The direction of travel from several recent EAT cases indicates that employers are expected to consult, at an early stage, about all aspects of a proposed redundancy – including selection criteria and pooling.
In Joseph de Bank Haycocks v ADP RPO UK Limited, the EAT held that a redundancy dismissal was unfair because of the lack of consultation at an early stage. In this case, much of what was missing from the consultation process (including selection criteria and scoring) was produced at appeal. However, the EAT held that the dismissal was unfair, noting 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’.
This focus on the start of the redundancy consultation process as being key to the overall fairness of the result was continued recently in the case of Valimulla v Al-Khair Foundation. In this case, the Claimant worked as a liaison officer covering the North-West of England. There were other employees who carried out a similar role in other geographic locations. Work for liaison officers decreased across the country during the Covid pandemic. The Respondent placed the Claimant at risk of redundancy in a pool of one. The other liaison officers were not placed at risk. Three consultation meetings were held. There was no consultation about the appropriateness of the pool. The Claimant was dismissed and claimed unfair dismissal.
The Employment Tribunal held that the Claimant had been fairly dismissed for redundancy. The Claimant appealed.
The Employment Appeal Tribunal, allowing the appeal, held that consultation on redundancy had to take place at a time when it could make a difference. The Respondent had not consulted with the Claimant about the pool for selection. The Tribunal had also failed to consider whether choosing a pool of one was a reasonable approach in this particular case.
The EAT substituted a finding of unfair dismissal (on procedural grounds) because of the failure to consult about pooling. It remitted the question whether it was reasonable for the Respondent to have applied a pool of one to a different Tribunal.
This case is a reminder that employers should be seen to be involving employees and seeking their views on all aspects of any redundancy process – at a time in the process where this is able to make a difference.
Family friendly employment rights: the rights of fathers in the UK
When family friendly employment rights are being considered, much of the focus generally falls on the rights of mothers. However, fathers have a number of workplace rights as well. As a ‘father’ is not just the biological dad, the below rights also apply to the mother’s husband, partner or civil partner.
HR need to understand and should promote these rights. Here we give you a rundown of some of the most important ones:
Paternity leave and pay
Fathers and partners of pregnant women who have been employed for at least 26 weeks by the end of the 15th week before the baby is due, are entitled to take up to two weeks paternity leave in the 52 weeks following the baby’s birth. This can be taken in two one-week blocks or one two-week block. This leave is paid at a flat rate which is currently £184.03 per week (or 90% of normal pay if this is lower).
Unpaid leave to attend antenatal appointments
Fathers have the right to unpaid time off to attend up to two antenatal appointments. Up to six and a half hours off work is allowed per appointment.
Shared Parental Leave
Shared Parental Leave allows parents to share up to 50 weeks of leave and 37 weeks of pay between them during the child’s first year. Fathers can take SPL in blocks or all at once, facilitating a balanced approach to caregiving and career commitments. Eligibility requires continuous employment for at least 26 weeks by the end of the 15th week before the expected week of childbirth, and the mother must also be eligible for maternity leave or pay.
Parental Leave
All parents (including fathers) are entitled to up to 18 weeks of unpaid parental leave for each child to be taken by the child’s 18th birthday. This leave can be taken in blocks of one week, up to a maximum of four weeks per year, per child. This right is designed to help parents spend more time with their children during critical stages of their development.
Parental bereavement leave
An employee can take 2 weeks’ leave for each child under 18 who has died or was stillborn after 24 weeks of pregnancy. The leave must be taken within 56 weeks of the date of the death or stillbirth. Pay is the same as for paternity leave: currently £184.03 per week (or 90% of normal pay if this is lower).
Time off for dependants
The law recognises that employees may need to take a short period of time off work to care for dependants (including children) when unexpected events occur. The right applies to both parents. Any time off is unpaid.
Flexible working
All employees, including fathers, have the right to request flexible working arrangements from day one of employment. This can include changes to working hours, patterns, or locations. Employers must consult on requests and can only refuse them on certain listed business grounds.
Always check your workplace policies for any enhanced rights which may be in place in your business.
And finally, preventing harassment in the workplace is often at the very top of HRs to do list. Training and policies often focus on key problem areas such as sexual harassment. They don’t often include any reference to ‘smell harassment’. However, according to the Japanese newspaper ‘Mainichi’, there has been an increase (in Japan at least) in ‘smell harassment’ issues in the workplace. The newspaper reports that, as the weather in Tokyo gets hot and humid, the sweaty season has arrived. Employees are taking to social media to complain about the impact that bad smells from their colleagues are having on their working life. One reported feeling ‘dizzy’ because of the body odour of their colleague.
The UK’s current laws on harassment do not make specific provision for smells. They may have the ‘effect’ of creating a ‘hostile’ environment but are unlikely to ‘relate to’ any characteristic protected under the Equality Act 2010, so would not be covered. There is, however, a risk that smell issues in the workplace, if left unresolved, could, in an extreme case, cause an employee to resign and claim constructive unfair dismissal. On the flip side, an employer who broaches the issue of an employee’s body odour in an insensitive way could risk that employee taking offence, resigning and claiming constructive dismissal themselves. Or, if the smell issue relates to an underlying disability, claims of disability discrimination.
Thankfully, UK summers are generally less humid than those in Japan. However, employers should think about measures they can take to reduce the likelihood of issues arising, for example, checking air conditioning and ventilation in the workplace and relaxing uniform rules during hot weather. If an issue is raised with you, make sure that it is handled sensitively.
We hope you've found some interesting reading in this latest 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