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EMPLOYMENT LAW BULLETIN – AUGUST 2024 – PRACTICAL PERSPECTIVES
Those undergoing fertility treatment in the UK is rising 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:
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 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.
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 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’ (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. However, 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.
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.
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 promote these rights. Here we give you a rundown of some of the most important ones:
Always check your workplace policies for any enhanced rights which may be in place in your business.
In the briefing notes that accompanied the King’s Speech in July, the government indicated that it intends to make changes to the living wage to ensure that it takes account of the cost of living. In addition, it promised to remove living wage age bands, which it described as discriminatory. Both of these promises also featured in the Labour Party’s Plan to Make Work Pay.
To start the ball rolling on these changes, last week the government issued a policy paper detailing the Low Pay Commission’s remit for 2024. In particular, the government asked the Commission to take account of the cost of living when it recommends the rate of National Living Wage (NLW) which should apply from April 2025. It also asked the Commission to recommend a National Minimum Wage rate for 18 to 20 year-olds that narrows the gap to the main NLW rate (which currently applies to those aged 21 and over). This would be an interim measure whilst the government takes steps to move towards a single adult rate.
‘Smell harassment’ – a workplace issue not to be sniffed at!
And finally, preventing harassment in the workplace is often at the very top of HR’s 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.