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EMPLOYMENT LAW BULLETIN – FEBRUARY 2024 – PRACTICAL PERSPECTIVES
In November 2023, the Supreme Court handed down their judgment in the case of Independent Workers Union of Great Britain v CAC. The Union had applied to the CAC for recognition for collective bargaining in respect of a group of riders working for Deliveroo. The CAC had refused to accept the Union’s application, on the basis that the riders were not ‘workers’ of Deliveroo within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992. Riders were not required to provide personal service and they were allowed to use substitutes.
The Union appealed the refusal on the basis that it breached Article 11 of the European Convention on Human Rights, arguing that the definition of ‘worker’ in the Act should have been looked at in the light of Article 11. Article 11 protects the right to freedom of association and to form and join a trade union. European case law makes it clear that the Article 11 right to form and join a trade union only exists where there is an ‘employment relationship’ in the European sense. The Supreme Court had to have regard to the factors set out in the International Labour Organisation Employment Relationship Recommendation, 2006 No 198 in looking at whether the riders were employees – focusing on a multifactorial approach, looking at performance of the work and remuneration of the worker.
Applying this test, the Supreme Court held that the riders were not in an employment relationship so the provisions of Article 11, which protect trade union activity, did not apply to them. They also confirmed that in any event, the rights protected by Article 11 did not extend to the protection of the right to collective bargaining. The CAC were correct to refuse the application for recognition.
Contractual terms cannot be used to subvert or limit statutory employment rights. Disputes which have their root in statutory employment rights (such as unfair dismissal and discrimination), can only generally be settled through ACAS (using a COT3 agreement) or by signature of a settlement agreement, which complies with the requirements set out in section 203 Employment Rights Act 1996 (including a requirement that legal advice is taken by the employee). This principle was reviewed by the Employment Appeal Tribunal in a recent case.
In SPI Spirits (UK) Limited v Zabelin, the Employment tribunal found that the Claimant had been subjected to detriment and automatically unfairly dismissed on grounds of whistleblowing.
The Respondent argued that it would be ‘just and equitable’ for the Claimant’s remedy to be capped at £270,000, as this was the maximum liability on termination included in the contract of employment. The Respondent argued that the Claimant was legally trained and had taken advice on the contract such that the cap should be applied. They further argued that the award should not be uplifted for failure to follow the ACAS Code of Practice, as the Claimant’s written grievance did not contain any protected disclosures. These were made later – verbally. The tribunal disagreed, applied a 20% uplift to compensation and awarded the Claimant over £1 million. The Respondent appealed.
The EAT agreed with the tribunal:
Employees currently have the right to make a formal flexible working request, only once they have completed 26 weeks’ service with their employer. As far back as 2022, the government indicated their intention to change this rule to make the right to request flexible working a day one employment right. They have now published legislation making good on their promise.
The Flexible Working (Amendment) Regulations 2023 were laid before Parliament in December 2023. They remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working, making the right to request flexible working a day one right.
The new right will come into effect for flexible working applications made on or after 6 April 2024. Employers should make sure that flexible working policies are amended to take account of this change.
The Carer’s Leave Act 2023 provides employees who have caring responsibilities for dependants with a long-term care need with a right to one week’s unpaid leave per year.
Employers should be prepared to incorporate carer’s leave into their family-friendly policies and procedures. The other key aspects of the new right are that:
The Carer’s Leave Act received Royal Assent on 24 May 2023. The draft Carer’s Leave Regulations 2024 to implement these reforms were laid before Parliament on 13 December 2023 and are due to come into force on 6 April 2024.
Employees on maternity leave already have the right to be offered any suitable alternative vacancy in a redundancy situation. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 provides for greater protection against redundancy during pregnancy and for six months after return to work from maternity leave as well as certain other family-related leave.
Employers will need to review their redundancy policies and procedures to ensure that they cover the right for those on maternity, adoption or shared parental leave to be offered any suitable alternative vacancy on redundancy.
HR professionals and line managers implementing a redundancy process will also need to ensure that they take account of the extended redundancy protection period where any employees at risk of redundancy are pregnant or have recently returned to work from maternity, adoption or shared parental leave.
The changes in relation to maternity leave will double the current period of redundancy protection from one year to around two years, assuming the pregnant employee advises the employer of their pregnancy at about the 12-week point and takes one year’s maternity leave. This could substantially increase the number of employees who must be given priority for any suitable alternative vacancy on redundancy, particularly in workplaces where the majority of employees are women.
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 received Royal Assent on 24 May 2023. The draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 were laid before Parliament on 11 December 2023 and are due to come into force on 6 April 2024.
The Worker Protection (Amendment of Equality Act 2010) Act 2023 provides for a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.
Employers are already liable for harassment carried out by their employees at work, unless they have taken “all reasonable steps” to prevent the harassment. However, a positive duty on employers to take steps to prevent sexual harassment should prompt employers to review their policies and procedures to ensure that:
HR professionals should also look out for a new statutory code of practice on sexual harassment. The Equality and Human Rights Commission is developing the new code and is expected to consult on a draft version before it is introduced.
Following amendments to the original Bill, the Act does not introduce employer liability for third-party harassment of employees.
The Act received Royal Assent on 26 October 2023 and is expected to come into force one year after that date.
Direct TUPE consultation for small businesses and where fewer than 10 employees transfer
Implementation date: For transfers on or after 1 July 2024
The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (SI 2023/1426) came into force on 1 January 2024.
The regulations amend the Transfer of Undertakings (Protection of Employment) Regulations 2006 so that the requirement to hold elections for employee representatives for TUPE consultation will be removed for small businesses and for transfers of fewer than 10 employees.
Where they do not already have employee representatives in place, employers will be able to consult directly with employees on TUPE transfers:
The change will apply to TUPE transfers taking place on or after 1 July 2024.
After announcing proposals to make changes to paternity leave rights in summer 2023, the government has now published draft legislation in the form of the Paternity Leave (Amendment) Regulations 2024.
The Regulations make the following changes:
The Regulations are stated to apply in all cases where the EWC is on, or after, 6 April 2024. These proposed changes are therefore due to take effect at the same time as other family-friendly legal changes. These changes include the introduction of carer’s leave, changes to flexible working rights, and the extension of redundancy protection to include pregnancy, and a period of time following maternity, adoption and shared parental leave.
Fit notes are the written notification of fitness to work which must be provided by an employee when they are absent from work due to sickness. Here are 5 things you should know about fit notes:
And finally…
The politics which surround the work fridge and its contents are often the cause of significant workplace friction. Employees who have their lunch taken and eaten are often seriously aggrieved. Usually, HR can resolve such issues by way of a polite note on the fridge door and a suggestion that food is named.
However, one employee in the US recently revealed on Reddit that he had taken more dramatic steps to identify who had been eating his sandwiches. Upset that his lunch kept being taken from the work fridge, he laced his sandwich with prescription-strength laxatives. He then reported to HR that his lunch (and his medication) had been stolen. The culprit was found by HR in a nearby toilet. HR took no action against the employee who had set-up the prank but sacked the sandwich-stealer (who was also, according to the Reddit article, interviewed by the police in relation to theft of prescribed medication). Although this example is an extreme one, it is a reminder to HR that theft of any sort within the workplace should be taken seriously. As one person commented on the Reddit article – “This is why employers shouldn’t disregard lunch thieves. It’s only a matter of time until they turn their thieving hands on the employers’ things or somehow cause damage to their employer.”
If you would like any further information of the topics covered in this bulletin do not hesitate to contact our consultants on 01942 554081.
