Welcome to your Quarterly Employment Law Bulletin from Roots HR.

This quarter we update you on…

New Government, New Employment Law?

This month marks the start of a new Labour government. If you’re keen to see what employment law changes may come into effect, take a look at our latest blog which explores the employment focused promises of their manifesto – https://www.rootshr.org.uk/blog/new-government-new-employment-legislation

Top tips for employers on handling the ‘Summer of sport’ 

Summer 2024 looks set to be a very busy one in the world of sport. The annual spectacle of Wimbledon is joined this year by the Paris Olympics and the Euros. These multi-day sporting spectacles can significantly impact workplace dynamics. As employers, ignoring their existence is not really a practical option. These events often capture the collective interest, leading to increased absenteeism, productivity drops, and workplace distractions. Here are our top tips to help manage workplace issues during these events:

  • Set up viewing areas – if your workplace set up allows it, consider setting up viewing areas where employees can drop in on the sporting action during the working day. Make it clear that the provision of these areas does not mean that a drop off in productivity will be tolerated. Set clear expectations of the amount of time that employees are reasonably allowed to spend in the viewing areas on breaks etc.
  • Look at the sporting timetable and promote flexible working hours around key events – Where possible consider giving employees the option to flex their working hours during these sporting events to make sure they meet their contractual commitments whilst still being able to watch the sporting action.
  • Remind employees of any attendance rules and policies – It is important that employees don’t get carried away. They should be reminded of the expectations placed on them in terms of workplace attendance and the consequences of failing to adhere to those expectations. Any policies in this area should be brought to the employees’ attention. Head off likely issues at the outset, for example, calling in sick the day after a big match or, having had holiday refused on the day of a match, calling in sick on that day instead. Make your stance clear on such matters. Let employees know that you will investigate any abuse of absence rules and that they can amount to misconduct.
  • Keep your position under review and react to how the sporting action is unfolding – We don’t yet know how British athletes will get on at the Olympics. Keep the situation under review. Communicate clearly what you are allowing employees to do in these cases so that everyone knows the parameters they are working within.
  • Use the summer of sport as a tool for employee engagement – consider holding a sweepstake or introducing themed days or quizzes to coincide with these sporting events. They can be a useful tool for employee engagement and can help boost employee morale.

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 details: 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 holding 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 just 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.

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. Read more 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.
  • 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 – 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 up to their 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.
  • Time off for dependants – the law recognises that employees may need to take a short period of time off 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 social sector organisation.

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 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.

Employment Appeal Tribunal emphasises importance of consulting about 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. Read more

Ina recent case, Joseph de Bank Haycocks v ADP RPO UK Limited, the Employment Appeal Tribunal (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 selection pool of one (meaning that the Respondent’s role was the only role placed at risk of redundancy). 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 Appeal Tribunal 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 EAT substituted a finding of unfair dismissal (on procedural grounds) because of the failure to consult about pooling.

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.

Finally, a reminder that employers should be careful about how they behave after an employee resigns

If an employee submits their resignation to their employer, then this 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 behaviour 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 behaviour 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 of 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.