Our monthly employment law update brings you the latest top picks of employment law developments that may affect your business.

Remember though, we’re always here to answer any questions you have and to help you navigate the wondrous world of employment law in managing your people!

This month we cover:

1. Right to Request a Predictable Working Pattern

2. Draft Statutory Code of Practice on Dismissal and Re-engagement.

3. New Positive Duty on Employers to Prevent Workplace Sexual Harassment in the Pipeline.

4. Case Law with Implications for your Business.

* Was an employee’s bad conduct linked to a disability?

5. Things to remember from previous updates…

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1. Right to Request a Predictable Working Pattern

We’ve talked a lot about the long-awaited Employment Bill over the past few months. There are lots of employment law reforms promised by the Bill, that are now being taken forward through several private members’ bills instead, which the government is backing.

One such Bill is the ‘Workers (Predictable Terms and Conditions) Bill’ which is aimed at giving zero-hour and casual workers more job security. The Bill will introduce a new right for workers and agency workers to request a more predictable working pattern with the following draft rules:

* The right is expected to apply to workers with at least 26 weeks' service.

* The right would apply where the working hours, days or times are uncertain in the working pattern, or where the worker is on a 12 months or less, fixed term contract.

* Workers can formally request a variation to their terms and conditions to gain more certainty in their working pattern.

* A maximum of two requests can be made by the same worker each year.

* There will be set procedure that employers will need to follow when considering such requests.

* Employers must have a good business case for rejecting such a request.

We still await an implementation date as is the case with many of the other private member’s Bills we have been letting you know about over the past months. If you have misplaced any of the key updates and would like a reminder on the other private member’s bills currently going through Parliament, please do let us know and we can send you a copy.

2. Draft Statutory Code of Practice on Dismissal and Re-engagement.

A new consultation has been launched by the Government concerning a draft statutory code of practice on ‘dismissal and re-engagement’ which will be open until 18th April 2023.

‘Firing and re-hiring’ is used by employers when they wish to change contractual terms and conditions but can’t get the employees to agree, so they dismiss them from the current contract and offer to re-employ them on the new contract under the new terms. Before anyone goes getting any ideas, it’s a risky business unless you have a very strong business case as to why you wanted to implement the changes!

The new draft code of practice outlines:

* The procedures an employer should follow when looking to make changes to an employee’s contract of employment.

* Clarity on meaningful consultation with the employee over the changes including providing detailed information and genuinely considering all alternatives.

* Firing and re-hiring being used only as a last resort.

* Requiring employers to be clear upfront as to whether they are prepared to unilaterally impose the changes by this method.

Once the code comes into force, if an employer fails to follow it, the tribunal can increase compensation by 25% if an employee brings a successful claim, as is currently the case with other statutory codes of practice such as the code of practice on discipline and grievance.

3. New Positive Duty to Prevent Workplace Sexual Harassment

You may have seen in the news lately that McDonald's has been in trouble with the Equality and Human Rights Commission (EHRC) as a result of reports from staff about how complaints of sexual harassment have been handled. Due to enforcement action by the EHRC, McDonalds have committed in a legally binding agreement with the EHRC, to improving its processes on handling complaints and providing harassment training to its employees and managers.

It'll be interesting to see whether more of this type of enforcement action begins to take place as there is new draft legislation going through parliament. The Worker Protection (Amendment of Equality Act 2010) Bill, places a positive duty on employers to proactively prevent sexual harassment in the workplace.

There will be a new statutory code of practice outlining how employers should deal with complaints and an expectation that training for employees and managers will take place.

As with other statutory codes of practice, employers will face an uplift in compensation if they fail to follow it or take reasonable steps to prevent sexual harassment in the workplace in cases of a successful sexual harassment claim by an employee.

There is currently no date for implementation, just that it will come into force one year after enactment.

4. Case Law with Implications

4.1 Was an employee’s bad conduct linked to a disability?

Phillip McQueen was an employee of the General Optical Council and had received informal and formal disciplinary warnings for various behavioural issues which his employer felt were ‘wholly unacceptable’, such as:

* Using aggressive gestures and body language and responding in a rude and disrespectful way to being asked to prioritise certain work.

* Leaving a manager in tears following a ‘meltdown’ when she asked him to clear a backlog of work.

* Disruptive behaviour regarding a habit of standing at his desk and speaking to others loudly.

* Anger towards colleagues over various issues such as being given instructions, his job description, his low appraisal rating and incorrect advice being given to a customer.

McQueen had several conditions which the employer knew about such as Asperger’s, dyslexia and left-sided hearing loss, that they accepted amounted to a disability under the Equality Act 2010.

McQueen claimed disability discrimination stating that he had been subject to unfavourable treatment for ‘something’ (i.e. the above behaviour) which arose from his disabilities.

The Employment Appeals Tribunal disagreed, stating that the conduct had nothing to do with his disabilities but instead arose from the employee resenting being told what to do and having a short temper. The EAT did however criticise how the employment tribunal had reached its original decision and advised that these issues should be approached in a structured way by asking:

1. What are the disabilities?

2. What are their effects?

3. What unfavourable treatment is alleged and proved?

4. Was that unfavourable treatment “because of” an effect or effects of the disabilities?

Takeaways – What does this mean for employers?

This case is a good reminder that for treatment to be “because of” something (the ‘something’ being for example bad behaviour) connected to a disability, it doesn’t need the disability to be the main reason for the “something” but can purely be a contributing factor (provided it’s more than a trivial/minor contributor).

Working out whether this is the case can be really difficult in some cases, especially where neurodiverse conditions come in, so always obtain medical evidence to attempt to understand whether the disability contributes to the behaviour you’re questioning. These types of cases will always be related to the specific facts and the effects of the disability shown in the medical evidence.

However, it’s worth noting that even if an employee can show that they were treated unfavourably because of poor behaviour which arose out of their disability, that doesn’t always mean that they would win in a disability discrimination claim.

This is because if the employer can show that there was a legitimate aim behind the treatment and that it was proportionate to achieving an outcome, this can be enough of a first defence. For example, an employer could suggest that their legitimate aim was to protect the health and safety of other staff and maintain a harmonious working environment, where an employee’s disruptive or aggressive behaviour is causing upset to others.

The next question would then be ‘was the treatment proportionate’? To answer this question, the employer would have to be able to show that they had considered other options which were less discriminatory (for example, placing them in a different role, providing them with coaching to help their behaviour).

5. Things to Remember from previous updates…

National Living & Minimum Wage Increases have happened

The National Living Wage (the rate that applies to workers aged 23 and over) has increased from £9.50 to £10.42 per hour as of 1 April 2023.

There have also been increases to the National Minimum Wage rates from 1 April 2023 too, as follows:

£10.18 per hour for 21- to 22-year-olds;

£7.49 per hour for 18- to 20-year-olds;

£5.28 per hour for 16- and 17-year-olds; and

£5.28 per hour for apprentices.

Check how much you’re paying your lower-paid workers and make sure you bring them up to these new rates.

Statutory Sick Pay & Family Leave Pay & Redundancy Pay Increases

Statutory Sick Pay has increased from £99.35 to £109.40 per week.

Statutory Maternity, Adoption, Paternity and Shared Parental Pay has increased from £156.66 to £172.48 a week.

The Statutory cap on redundancy pay has also increased from £571 to £643 per week.

Extra Bank Holiday 8th May 2023

There will be an extra bank holiday on 8 May 2023 to mark the Coronation of King Charles III.

However, whether workers will be entitled to have this day off and whether it will be paid will depend on the wording of their contracts.

There are several ways in which bank holiday entitlement can be expressed in the contract, which will have differing impacts so you’ll need to check what yours say. The following highlights some of the possible variations, in relation to a full time, 5 day per week worker using the statutory minimum holiday allowance for illustration purposes.

1: 20 days holiday plus bank holidays: This entitles your employee to 20 days paid holiday plus all the bank holidays on top i.e. if there are additional bank holidays granted such as the Kings Coronation day, they will be entitled to those too.

2: 20 days holiday plus 8 bank holidays: This entitles your employee to 20 days paid holiday with 8 bank holidays on top taking them to 28 days. If there are additional bank holidays granted, they will still only be entitled to 8 as paid leave. If they don't work the additional bank holiday such as the day of the King’s Coronation, you would need to deduct that day from their annual leave entitlement.

3: 28 days holiday including bank holidays: This entitles your employee to 28 days paid holiday including any bank holidays as part of that, regardless of how many bank holidays there are in any given year so you’d deduct the bank holidays from the 28 days where they don’t work them. However, be aware that if your employees work some bank holidays, you'll need to give them that day as holiday in lieu to be taken at some other time.

4: 28 days holiday including 8 bank holidays: This entitles your employee to 28 days holiday but with 8 bank holidays included as part of the 28 days. If there are additional bank holidays granted, they will still only be entitled to 8 as paid leave. If they don't work the additional bank holiday such as the day of the King’s Coronation, you would need to deduct that day from their annual leave entitlement.

Disclaimer

The intention of this update is to give general information only and isn’t intended to be an exhaustive statement of the law. Although we’ve taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.