Employment Law Bulletin – October 2023

EMPLOYMENT LAW BULLETIN – OCTOBER 2023 – PRACTICAL PERSPECTIVES

Dress codes at work: key things to consider

Employers are able to issue employees with reasonable workplace instructions across a wide variety of different areas of working life. Dress code is one of these. Employers can set rules regarding acceptable workplace dress. Sometimes what is acceptable will be linked to employer branding and image (think of uniforms used in restaurants and hotels), sometimes it will be dictated by health and safety requirements (think of work boots and high visibility clothing on building sites) and sometimes it will merely be linked to maintaining a certain level of professionalism and separating ‘leisure’ from ‘work’.

Regardless of the impetus any form of dress code in the workplace, employers should make sure that the rules are reasonable, easy to understand and non-discriminatory. In particular, we suggest that employers consider the following:

• Make sure that your dress code does not unreasonably impinge on an employee’s cultural, racial or religious clothing if at all possible. There are obviously circumstances (for example, where health and safety concerns are involved) where this will not be possible but, outside of this, any dress code should not include any discriminatory requirements unless you are satisfied that they can be justified.
• Gender-specific clothing rules should be avoided as these are likely to be found to be discriminatory on grounds of sex, sexual orientation and/or gender re-assignment.
• If your business adopts a hybrid-working pattern then consider the relaxation of any dress code for days when the employee is not in the office.
• Make sure that you set out any dress code rules in a clear, accessible policy or other document, draw employee attention to it and explain the action that will be taken against employees in the event of non-compliance. It is likely that wilful non-compliance would be dealt with as a disciplinary matter but employers need to be careful not to be too heavy-handed and to take the time to understand any reasons underlying the employee’s non-compliance.
• Take account of the impact of any dress code on employee wellbeing. If employees do not feel comfortable at work then this could impact on productivity and wellbeing.

Holiday pay claims no longer restricted by 3-month gaps between deductions

The Supreme Court has recently handed down its judgment in the case of Chief Constable of Police Service of Northern Ireland v Agnew.

The Claimants were police officers and civilian staff working for the police in Northern Ireland. They brought claims for underpayment of holiday pay after having historically received basic pay only during periods of annual leave. The parties agreed that there had been an underpayment and that

holiday pay should have been calculated to include periods of compulsory overtime. The issue before the Supreme Court was how far back the Claimants were entitled to go with their claim.

In Bear Scotland v Fulton the EAT had previously concluded that deductions could only be linked in a series if there was a gap of three months or less between each deduction.

But the Supreme Court has now held that employees can claim for historic underpayments of holiday pay even if there are gaps of more than three months between deductions. The Court concluded that the period during which a claim can be brought is three months from the date the last payment was made, but that this three-month limit does not restrict or qualify the meaning of a “series” of deductions.

From an employer’s perspective, it’s important to remember that the impact of this judgment is mitigated by the fact that claims for unlawful deductions from wages under the Employment Rights Act 1996 can now only go back two years.

Government announces flexible working changes

Some changes are being made to the legal rules on flexible working under the Employment Relations (Flexible Working) Act 2023. The Act is likely to come into force next year. The following changes are being made:

• Employees will now be able to make two flexible working requests in any 12-month period (they are currently only able to make one).
• Requests have to be dealt-with by employers within 2 months of receipt of a request if no extension is agreed (a reduction from the current 3-month period).
• Employers are not able to refuse a request until they have ‘consulted’ with the employee (although there is no explanation of the level of ‘consultation’ required).
• Employees will no longer have to explain in their application what effect they think agreeing to the request would have on their employer and how any such effect might be dealt with.

Notably the changes do not make flexible working a Day 1 right. The government is still proposing to do this but says that it will use secondary legislation in order to do so. No draft legislation has yet been published. This means that, for now, employees still need to have 26 week’s service in order to be eligible to make a request.

‘New deal for working people’ – Labour plans to introduce right to disconnect if it wins the next election

The Labour Party have published their ‘New deal for working people’ outlining the changes they propose to make to employment law if they win the next election. Alongside high-profile proposals such as scrapping the 2 year qualifying period for ordinary unfair dismissal they have also pledged to introduce the ‘right to disconnect’. The proposal is short on detail but could mean that employers will find themselves restricted from contacting workers outside of normal working hours to better protect employees’ work-life balance. Other jurisdictions have already embraced this idea – in France, businesses with over 50 employees must offer the right to disconnect. In Ontario Canada the right applies to all those working in businesses with over 25 employees.

No detail is provided as to how this right would be implemented by a Labour government in the UK and what enforcement measures might be put in place to ensure compliance. The UK already has an opt-out of the 48-hour working week for working time – perhaps employees will equally be able to opt-out of the right to disconnect? If so, the right is unlikely to have a significant impact on workplace culture.

There are potential issues with the proposal, for both employers and employees. Employers in some sectors rely upon employees being available out-of-hours and at short notice. This is often rewarded by way of higher salary and benefits. From an employee’s point of view, as businesses adopt a wider range of agile working solutions in the aftermath of COVID-19, having prescriptive disconnection times may not work for all. Those who work condensed or flexible hours may actually want to be connected outside of the normal working day.

Unless and until we have a change of government, these proposals are unlikely to gain much traction but the fact that they are being proposed at all should prompt employers to look carefully at their own positions on flexibility and work-life balance. Much can be achieved in terms of employee engagement and job satisfaction by employers focusing on these areas regardless of what the law may require them to do.

Government publishes response to proposal on reforming parental leave and pay

The government has published a response to a 2019 consultation on proposals for reforming parental leave and pay,

The response sets out substantive changes to paternity leave which will be implemented in due course:

• Employed fathers and partners will be able to take the current entitlement of up to two weeks’ statutory paternity leave in two separate blocks of one week of leave if they wish, rather than having to choose between taking one week or two weeks.
• Employed fathers and partners will be able to take their statutory paternity leave at any time in the first year (within 52 weeks of birth or placement for adoption), rather than just in the first eight weeks after birth or placement for adoption.
• Currently, notice of the date on which an employee wants paternity leave to start has to be provided 15 weeks before birth. The government will change the notice requirements for statutory paternity leave to make these more proportionate to the amount of time the father or partner plans to take off work. It is proposed that fathers will need to give 28 days’ notice before each period of leave they intend to take, although the notice of entitlement will still need to be given 15 weeks before birth.

Although the consultation also considered other family-related leaves, including maternity leave and pay, maternity allowance, and unpaid parental leave, no changes are currently proposed to these entitlements.

A genuinely consensual termination cannot be an unfair dismissal

In the case recent of Riley v Direct Line Insurance Group the claimant had Autism Spectrum Disorder. He was absent from work due to this condition for several years. A return to work was attempted but

was unsuccessful. Medical evidence indicated that he would never be able to return to work in his role. The claimant was informed that, under a permanent health insurance scheme called Pay Direct offered by UNUM, his salary payments would continue to be made up to retirement age if his employment ended. The claimant checked with UNUM and then agreed to this proposal. A formal termination meeting was held with him. The letter sent following this meeting referred to him having been ‘dismissed’.

The claimant brought a claim for, amongst other things, unfair and discriminatory dismissal. The tribunal found that the claimant had not been dismissed. The termination of his employment was consensual meaning that the claims of unfair and discriminatory dismissal failed.

The Employment Appeal Tribunal agreed with the tribunal’s conclusions. In particular, there was the required clear evidence of a free and consensual termination. The claimant was not tricked or coerced in any way. He participated in the discussions, was given time and fully understood what he was doing. The existence of a letter which said the claimant was dismissed did not undermine this conclusion – the termination was agreed consensually before the letter was written.

If a simple settlement agreement had been agreed between the parties in this case at the point that the consensual agreement to terminate was reached then this whole claim could have been avoided. A settlement agreement would have prevented the employee seeking to bring tribunal proceedings, after the event, arguing that they were ‘tricked’ and never consented in the first place. Employers who find themselves in similar situations should give serious consideration to requiring the employee to enter into a settlement agreement recording the consensual agreement between the parties.

Maya Forstater awarded over £100,000 following remedy hearing in gender critical belief discrimination case

The landmark case of Forstater v CGD Europe Limited was notable as the first case in which the UK courts confirmed that gender critical views (the belief that sex is biological and immutable) can form a protected philosophical belief under Equality Act 2010. Ms Forstater had succeeded in claiming that she had been directly discriminated against when she was offered no further CGD consultancy work and a visiting fellowship was not renewed after she had made her gender critical views public.

Following a recent remedy hearing she has now been awarded over £100,000 in damages, including loss of earnings, injury to feelings and aggravated damages. The injury to feelings award was £25,000. She was also awarded £2,000 in aggravated damages.

This remedy judgment is useful for employers as it provides a clear guide as to where tribunals are likely to pitch injury to feelings awards in similar cases. A reminder, if one was needed, that failing to treat employees with respect or treating them differently because of their beliefs can be very costly for employers.